RECONSTRUCTION 

DURING  THE  CIVIL  WAR  IN  THE 

UNITED  STATES  OF 

AMERICA 


BY 


EBEN   GREENOUGH   SCOTT 


OF  THF 

UNIVERSITY 


BOSTON  AND   NEW  YORK 
HOUGHTON,  MIFFLIN  AND   COMPANY 


Copyright,  1895, 
BY  EBEN  GREENOUGH  SCOTT. 

<4#  rights  reserved. 

7933? 


The  Riverside  Press,  Cambridge,  Mass.,  U.  S.  A. 
Electrotyped  and  Printed  by  H.  O.  Houghton  and  Company. 


PREFACE. 

THE  term  "  reconstruction,"  in  American  politics, 
applies  more  aptly  to  the  revolted  states  than  it  does 
to  the  federal  Union ;  for  the  mutilated  form  of  the 
Union  was  restored  by  the  mere  ascendancy  of  the 
northern  arms,  Tbut  it  was  not  until  after  this  had 
occurred  that  the  eleven  states  were  reconstructed. 
The  period  during  which  the  process  of  renewal  was 
taking  place  is  called,  in  popular  speech,  the  Recon 
struction  Period,  and  it  refers,  somewhat  indefinitely, 
to  the  time  occupied  by  the  single  term  of  President 
Johnson  and  the  succeeding  two  terms  of  President 
Grant,  —  the  presidential  terms  during  which  the 
ancient  governments  of  the  subdued  states  were 
finally  subverted,  and  new  ones  were  erected  in  their 
places. 

I  intend  to  write  the  political  history  of  the  period 
of  reconstruction,  but,  preliminary  to  doing  so,  I  have 
set  forth  in  this  book  certain  things  necessary  to  be 
known  before  taking  up  the  subject  and  pursuing  it  in 
the  sequence  of  time.  It  is  a  notable  thing  that,  from 
the  very  beginning  of  the  Civil  War,  the  federal 
government  never  evinced  a  doubt  of  ultimate  suc 
cess,  and  it  is  significant  that,  even  in  moments  of 


iv  PREFACE. 

disaster  which  seemed  irretrievable,  it  was  occupied 
with  the  question,  "  What  is  to  be  done  with  the 
revolted  states  when  the  fortune  of  war  shall  have  put 
their  fate  in  our  hands  ?  " 

At  first,  the  notion  prevailed  that  the  seceded  states 
would  retake  their  places  in  the  Union  merely,  and 
that,  this  done,  "the  Union  as  it  was"  would  be  re 
stored.  It  was  not  long,  however,  before  the  slavery 
question  made  itself  felt  by  transmuting  restoration 
into  reconstruction,  and  the  distractions  of  the  times 
were  augmented  by  the  conflicting  opinions  on  this 
subject  winch  divided  the  people  and  gained  head  in 
Congress.  Nothing  could  be  implied  from  the  Consti 
tution  but  restoration  ;  yet  restoration  involved  the 
continuance  of  slavery,  and  this  was  out  of  the  ques 
tion  with  the  people,  who  were  now  demanding  that  no 
settlement  should  be  made  without  the  elimination  of 
that  which  was  certain  to  produce  a  recurrence  of  the 
intolerable  evil  under  which  they  were  laboring.  Presi 
dent  and  Congress,  accordingly,  changed  front,  and 
the  proclamations  of  one  and  the  debates  and  legisla 
tion  of  the  other  showed  how  determinedly  the  North 
was  bent  upon  a  new  order  of  things. 

Though  the  object  sought  was  manifest,  and  the 
demand  for  change  was  peremptory,  the  means  by 
which  this  change  was  to  be  effected  and  this  object 
was  to  be  attained  were  not  clear.  The  Constitution 
gave  110  help  to  a  procedure  which  was  foreign  to  the 
system  of  which  it  was  the  expression.  The  contra- 


PREFACE.  v 

riety  among  the  people  betrayed  itself  on  the  floor  of 
Congress  in  the  dissension  of  factions.  The  President 
took  one  view  of  the  relations  of  a  state  to  the  Union, 
a  faction  of  the  Republicans  took  another,  while  the 
Democrats,  reduced  to  a  party  of  mere  protest,  still 
clung  unavailingly  to  the  doctrine  of  restoration. 
There  was  much  groping,  much  fault-finding,  and 
much  contention,  but  uppermost,  out  of  the  confusion, 
rose  at  length  that  which  became  known  as  the  Presi 
dential  Plan  of  Reconstruction.  This  plan  was  actu 
ally  in  progress  in  several  of  the  regained  states  when, 
by  the  assassination  of  President  Lincoln,  its  further 
ance  devolved  upon  President  Johnson.  This  plan 
had  been  prescribed  by  proclamation  of  the  Presi 
dent. 

It  is  to  bring  the  genesis  of  "reconstruction" 
before  the  reader  that  this  volume  has  been  written. 
It  is  not  a  history  of  the  contentions  of  parties  and 
factions,  but  it  is  a  presentation  of  the  conception 
illustrated  by  the  proclamations  of  the  President,  and 
by  the  debates  (particularly  those  of  the  Senate) 
upon  these  proclamations,  and  upon  matters  which 
touched  vitally  the  constitutional  relations  of  the 
states  to  the  federal  Union :  it  shows,  consequently, 
the  great  change  of  opinion  and  of  sentiment  which 
the  people  of  the  United  States  were  then  undergoing, 
and  which  at  length  found  expression  in  three  amend 
ments  of  the  Constitution. 


vi  PREFACE. 

In  a  written  constitution,  the  people  of  the  United 
States  have  a  standard  whereby  to  determine  their 
constitutional  character ;  for  no  matter  how  contrary 
the  modes  of  construing  this  instrument,  the  written 
words  remain.  The  Constitution,  therefore,  preserves 
the  character  of  a  landmark  by  which  the  fidelity 
or  infidelity  of  the  people  to  their  ancient  character 
can  be  judged.  When  the  storm  has  cleared  away, 
it  reveals  indubitably  how  far  they  have  been  swept 
from  their  moorings.  It  is  absolutely  essential  to  a 
people,  the  security  of  whose  liberties  is  coincident 
with  the  preservation  of  their  constitutional  character, 
to  ascertain  if  they  have  suffered  this  character  to 
become  impaired.  Such  an  opportunity  as  that  pre 
sented  by  the  subsidence  of  the  agitation  which  accom 
panied  the  most  stormy  days  through  which  the  United 
States  have  ever  passed  has  not  occurred  before  to 
the  Americans,  and  the  reader  cannot  close  this  pain 
ful  chapter  of  our  history  without  the  question  rising 
to  his  lips,  Have  we  preserved  the  ancient  character 
handed  down  to  us  along  with  the  Constitution,  or 
have  we  wandered  from  the  faith  of  our  fathers  ? 
WASHINGTON,  D.  C.,  March,  1895. 


CHAPTER  I. 

INTRODUCTORY. 

turn 

Withdrawal  of  southern  senators  from  the  Senate  of  the  United 
States.  —  Personality  of  the  states  ;  the  Senate.  —  Representa 
tion  of  the  people  ;  the  House  of  Representatives.  —  Contrast 
between  the  northern  and  the  southern  peoples.  —  The  compro 
mise  element  in  the  Constitution.  —  Equality  of  the  states  .  .  1 

CHAPTER  II: 

FEDERAL 'UNION  J   REPRESENTATIVE   DEMOCRACY. 

The  Anglican  Revolution ;  descent  of  power  from  ruler  to  peo 
ple.  —  Aristotle's  "  constitution  "  and  "  government."  —  Con 
tributions  of  different  colonies  to  the  modern  Union.  —  Contri 
butions  of  the  United  States  to  the  science  of  government.  — 
Federal  Union.  —  Representative  Democracy.  —  Three  great 
events  in  North  American  history.  —  The  most  striking  physi 
cal  characteristics  of  the  British  colonies  in  America  ....  23 

CHAPTER   III. 

POLITICAL   8EPARATENESS    OF    THE   BRITISH    COLONIES. 

Causes  of  segregation.  —  Lack  of  the  sentiment  of  union.  — What 
was  a  British  colony  ?  —  Political  nature  of  a  colony,  and  the 
relations  of  a  colonist  to  the  crown  and  to  his  colony.  —  Politi 
cal  corporations.  —  Allegiance.  —  Social  and  economical  effects 
of  separateness  ;  its  advantages  and  disadvantages.  —  Extremi 
ties  to  which  spirit  of  exclusion  reached.  —  Colonial  individu 
ality.  —  Colonial  development  due  to  self-government :  colonies 
were  creatures  of  growth  and  development.  —  Separateness  due 
to  natural  causes 43 

CHAPTER  IV. 

SEPARATENESS   OF   THE    BRITISH    COLONIES CONTINUED. 

Separateness  during  the  Stamp  Act  period  :  duringj;he  Congres 
sional  period.  —  Congress  of  1774  and  1775.  —  The  Declaration 
of  Independence.  —  Local  self-government 64 


viii  CONTENTS. 

CHAPTER  V. 

THE   ARTICLES    OF   CONFEDERATION. 

The  Articles  of  Confederation  expressive  of  segregation,  and  also 
of  union.  —  Old  School  and  New  School. —  The  government 
designedly  a  weak  one  ;  elimination  of  the  "  ruler  "  element.  — 
Confederation  suggested  by  the  New  England  Confederation  of 
1643.  —  Alight  effect  of  the  Revolution  upon  the  colonial  gov 
ernments.  -  Growth  of  union.  —  Defects  of  the  Articles  of  Con 
federation  *  *  a  governmental  structure  set  forth  by  Hamilton  .  81 

CHAPTER  VI. 

THE    CONSTITUTION. 

Tho  Constitution  a  necessity.  —  It  guarantees  the  integrity  of  the 
state  governments.  —  Its  inherent  conservatism.  —  In  it  the 
sentiment  of  union  has  become  a  dominating  political  force.  — 
The  Constitution  terminates  the  Revolution  and  hands  down 
its  gains.  —  Federation  and  popular  representation.  —  Appor 
tionment  of  taxation  and  representation  ;  a  compromise  between 
the  North  and  South.  —  The  guaranty  of  a  republican  form  of 
government 104 

CHAPTER  VII. 

THE   FORMATION   OF   PARTIES. 

The  evolution  of  parties  in  free  governments.  —  The  colonial 
epoch,  the  brooding  epoch ;  fondness  of  colonists  for  politics, 
and  practical  part  universally  taken  by  them  in  governing.  — 
No  general  parties  during  colonial  period.  —  Parties  generated 
during  the  revolutionary  epoch.  —  Change  of  colonial  character. 
—  Constituents  of  the  Federalists 125 

CHAPTER  VIII. 

THE   FORMATION  OF  PARTIES — CONTINUED. 

Constituents  of  the  Democratic-Republican  Party  (Anti-Federal 
ists).  —  Principles  prevalent  among  the  people,  especially  the 
agriculturists.  —  Errors  of  the  Federalists.  —  Jefferson  and 
Hamilton.  —The  Old  School  and  the  New  School 145 

CHAPTER  IX. 

THE    FORMATION    OF   PARTIES  —  CONTINUED. 

Parties  form  on  Hamilton's  measures.  —  Contrary  constructions 
of  the  Constitution  ;  liberal  and  strict  construction.  —  Madison 


CONTENTS.  ix 

leads  the  strict-constructionists  in  Congress.  —  Personal  feeling. 
—  Views  of  Hamilton's  financial  policy  entertained  by  the  Jef- 
fersonians.  —  Hamilton's  system  favored  a  plutocracy  rather 
than  an  aristocracy 171 

CHAPTER   X. 

CONSTITUTIONAL  LEGISLATION. 

The  Ordinance  of  1787.  —  The  Kentucky  and  Virginia  Resolu 
tions.  —  The  Missouri  Compromise 189 

CHAPTER  XL 

COERCION,    OB  NON-COERCION? 

Condition  of  affairs  at  the  inauguration  of  Abraham  Lincoln.  — 
Coercion,  or  non-coercion  ?  —  Inaugural  Address  and  answer 
to  the  Virginia  Commissioners.  —  Coercion.  —  The  President's 
Message  of  July,  1861.  —  "No  state,  upon  its  own  mere 
motion,  can  lawfully  get  out  of  the  Union  " 228 

CHAPTER  XII. 

DEVELOPMENT   OF   PRINCIPLES   OF   CONGRESSIONAL  ACTION  TOWARDS 
THE    SOUTH. 

The  Crittenden  Resolution  of  July  22,   1861.  —  Debate  in  the  * 
Senate   upon  the   Resolution.  —  Sumner's   Resolutions.  —  Ste 
vens'  vae  victis  policy  —  Hale  on  arbitrary  arrests.  —  Claim  of 
Congress  to  absolute  power  in  reconstruction 245 

CHAPTER  XIII. 

PLANS  OF    RECONSTRUCTION. 

The  Emancipation  Proclamation.  —  The  Amnesty  Proclamation 
and  Presidential  Plan  of  Reconstruction.  —  The  Congressional 
Plan  of  Reconstruction  and  debate  thereon  in  the  House  of 
Representatives 266" 

CHAPTER  XIV. 

THE   CONGRESSIONAL  PLAN   OF   RECONSTRUCTION. 

The  Congressional  Plan  of  Reconstruction.  —  Debate  in  the 
Senate.  —  Madison  on  the  constitutional  guarantee  of  a  republi 
can  form  of  government.  —  Carlile's  remarks  upon  this  guar 
antee.  —  The  President  withholds  his  assent  to  the  Reconstruc 
tion  Bill.  —  His  proclamation  thereon,  and  the  Manifesto  of 
Senator  Wade  and  Representative  Henry  Winter  Davis  .  .  .  290 


X  CONTENTS. 

CHAPTER  XV. 

THE   CONGRESSIONAL  PLAN   OF   RECONSTRUCTION — CONTINUED. 

The  debate  in  the  House  on  the  Reconstruction  Bill.  —  Last 
speech  of  Henry  Winter  Davis.  —  Failure  of  Ashley's  substi 
tute  306 

CHAPTER  XVI. 

ENFORCEMENT   OF   THE   PRESIDENTIAL  PLAN  OF   RECONSTRUCTION. 

The  reconstruction  of  Tennessee.  —  Arkansas.  —  Louisiana      .     .  317 
CHAPTER  XVII. 

ENFORCEMENT    OF     THE    PRESIDENTIAL    PLAN   OF   RECONSTRUCTION 

—  CONTINUED. 

The  reconstruction  of  Louisiana,  continued 334 

CHAPTER  XVIII. 

ENFORCEMENT   OF   THE    PRESIDENTIAL    PLAN    OF    RECONSTRUCTION 

—  CONTINUED. 

The  reconstruction  of  Louisiana  continued.  —  Debate  in  the 
Senate  upon  the  recognition  of  Louisiana  as  a  State  ....  349 

CHAPTER  XIX. 

WHAT   CONSTITUTES   A   STATE   OF   THE   AMERICAN  UNION  ? 

Debate  in  the  Senate  upon  a  resolution  to  reject  from  the  Elec 
toral  College  the  states  that  had  seceded.  —  The  case  of  Loui 
siana  discussed 374 

CHAPTER  XX. 

CONCLUSION 390 

APPENDIX  A 401 

APPENDIX  B 406 

APPENDIX  C 411 

INDEX  .  427 


RECONSTRUCTION 

DURING  THE  CIVIL  WAR  IN  THE  UNITED  STATES 
OF  AMERICA. 


CHAPTER   I. 

INTKODUCTOKY 

Withdrawal  of  southern  senators  from  the  Senate  of  the  United 
States  —  Personality  of  the  states ;  the  Senate  —  Representation 
of  the  people ;  the  House  of  Representatives  —  Contrast  between 
the  northern  and  the  southern  peoples  —  The  compromise  element 
in  the  Constitution  —  Equality  of  the  states. 

ON  the  twenty-first  of  January,  186 1,1  the  most  im 
pressive  and  painful  scene  in  the  annals  of  the  United 
States  of  America  was  witnessed  in  the  Senate  Cham 
ber.  The  rumor  had  gone  abroad  that  the  senators 
of  several  of  the  states  which  had  seceded  were 
about  to  withdraw  from  the  Senate.  The  chamber 
was  filled  with  members  and  with  those  who  had  the 
privilege  of  the  floor,  and  the  galleries  were  crowded 
with  spectators.  Every  state  was  present  except 
South  Carolina;  her  senators  had  not  come  to  the 
capitol,  but  had  sent  in  their  resignations  in  writing 
before  the  session  began,  and  when  the  time  came 
the  chairs  of  these  senators  were  empty.  The  first 
state  to  turn  its  back  upon  the  Union  was  Florida, 
one  which  had  been  among  the  latest  to  be  wel- 

1  Cong-.  Globe,  484  et  seq. 


2  INTRODUCTORY. 

corned  with  open  arms  by  the  sisterhood  of  states ; 
it  was  also  one  of  the  weakest.  Rising  in  his  place, 
Yulee  set  forth  briefly  the  reasons  which  had  led 
his  state  to  secede,  and  then  he  bade  adieu  to  the 
Senate.  He  was  followed  by  the  other  senator  from 
this  state,  Mallory,  who  alluded  to  the  fidelity  with 
which  the  South  had  clung  to  the  Union  throughout 
her  patient  endurance  of  insult  and  wrong,  and  in 
the  same  breath  announced  that  Florida  had  come 
into  the  Union  only  fifteen  years  before,  and  that, 
from  the  Union  as  their  fathers  had  made  it,  there 
breathed  not  a  secessionist  upon  the  soil  of  this 
state.  In  spite  of  the  solemnity  of  the  moment,  the 
inquiry  forced  itself  upon  the  mind  of  the  onlooker : 
Why  did  Florida  enter  the  Union,  if  merely  to  share 
the  insult  and  wrong  of  the  other  southern  states? 
And,  having  accepted  such  a  fate  with  her  eyes  open, 
with  what  consistency  did  she  now  turn  her  back  upon 
a  Constitution  which  she  had  been  glad  to  accept,  and 
which  was  the  same  at  this  moment  as  it  had  been 
when  she  had  sought  its  protection  ?  Censoriousness 
and  argument  were  overwhelmed  beneath  the  anguish 
which  convulsed  the  breast  of  every  listener,  and 
which  was  augmented  by  the  recital  of  each  sister, 
who,  through  her  representatives,  uttered  her  sense  of 
injury.  Alabama  followed  Florida,  and  Mississippi, 
Alabama.  The  story  of  their  griefs  was  told  by  these 
states  in  subdued  and  measured  tones ;  the  time  for 
threat  and  defiance  had  gone  by,  the  very  parting  it 
self  had  come,  and  the  pain  which  wrung  northerner 
and  southerner  alike  was  betrayed  by  twitching  lips 
and  by  deep  silence. 

Every  eye  and  every  ear  was  intent  upon  Jefferson 


SECESSION  AND  NULLIFICATION.  3 

Davis  when  he  rose.  He  was  not  in  good  health,  but 
to  this  alone  could  be  attributed  any  faltering  or  agi 
tation.  There  was  none :  this  was  the  crowning  hour 
of  his  existence,  and  he  approached  the  culmination 
of  his  life-work  with  calmness  and  dignity.  All  his 
life  long,  he  had  maintained  the  right  of  a  state  to 
withdraw  from  the  Union,  and  this  as  an  attribute  of 
sovereignty  coequal  with  the  right  under  which  the 
state  had  entered  into  the  Union.  He  was  no  nullifier ; 
nullification  implied  union,  and  he  was  no  unionist. 
To  nullify  was  to  parry,  to  palliate ;  it  was  to  confess 
a  right,  yet  to  avoid  its  obligations.  Nullification  and 
secession  were  incompatible  principles.  Davis  neither 
parried,  nor  compromised,  nor  sulked ;  he  believed 
that  the  states  were  sovereign  and  unaccountable,  and 
where  there  had  been  aggression  he  would  not  acknow 
ledge  superior  power,  but  he  was  for  meeting  aggres 
sion  on  the  threshold  by  denying  the  superiority ; 
therefore,  to  Union  he  opposed  dis-Union ;  to  aggres 
sion,  resistance.  There  was  no  middle  course ;  so 
long  as  a  state  was  a  member  of  the  Union,  it  was 
bound  to  obey  the  law  that  was  common  to  all ;  if  it 
would  not  obey,  it  must  leave  the  Union,  and  of  the 
necessity  of  such  a  course,  there  was  no  judge  but  the 
sovereign  state.  No  one  had  the  right  to  question,  or 
to  sit  in  judgment  upon  a  sovereign,  and  unqualified 
obedience  was  the  sole  duty  of  the  children  of  a  state. 
This  doctrine  he  had  taught  his  people  in  season  and 
out  of  season,  and  the  hour  had  now  come  when  he 
was  reaping  what  he  had  sown.  His  eyes  were  be 
holding  the  success  long  striven  for ;  the  states  were 
going  out ;  he  was  seeing  them  take  their  departure ; 
he  was  hearing  them  saying  good-by ;  and,  above  all, 


4  INTRODUCTORY. 

lie  was  beholding  the  deep  emotion  of  those  who  were 
left  behind.  His  tone  was  not  exultant,  neither  did 
his  voice  falter ;  his  manner  was  gentle,  firm,  deter 
mined. 

Heretofore  Davis  had  been  the  teacher,  the  seer, 
the  leader  of  his  people ;  but  when  he  was  made  king 
he  ceased  to  be  prophet  and  priest.  As  President  of 
the  Confederate  States,  he  became  merely  the  official 
head,  a  figure-head  of  a  government ;  he  played  a  part 
which  other  men  could  have  filled  with  equal  benefit 
to  his  cause ;  he  was  no  longer  the  soul  of  the  South. 
In  passing  from  the  legislature  to  the  field,  the  work 
of  maintaining  secession  fell  into  other  hands :  and 
true  it  is,  that,  when  Jefferson  Davis  bade  farewell  to 
the  United  States,  he  bade  farewell  to  the  real  work  of 
his  life.  He  found  but  a  barren  sceptre  in  his  gripe, 
and  when  he  left  the  Senate  Chamber  he  took  the 
course,  which  he  pursued  with  heroic  resolution  and 
with  Promethean  defiance  of  his  enemies,  until,  a  fugi 
tive,  his  flight  was  ended  in  the  woods  of  Georgia  by 
the  hand  of  a  common  soldier. 

But  prominent  as  this  man  was,  and  impressive  as 
might  be  the  personality  of  one  upon  whom  men 
looked  as  being  the  embodiment  of  a  cause,  the  spec 
tacle  owed  its  significance  and  solemnity  to  something 
deeper  than  that  with  which  it  was  invested  by  one 
man.  The  departures  from  the  House  of  Representa 
tives  were  mostly  signified  by  written  missives,  but 
there  departure  did  not  convey  the  intense  and  deeply 
moving  force  that  it  did  in  the  Senate.  For  in  the 
House  it  was  representatives  merely  who  were  turning 
their  backs  upon  their  fellows,  but  in  the  Senate  it 
was  sovereign  states  that  were  deserting  the  common 


DEPARTURE   OF  THE  STATES.  5 

hearth.  The  states  were  going  out.  All  that  ever 
had  been  feared,  or  derided  as  improbable,  or  defied 
as  impossible,  or  talked  against,  written  against, 
prayed  against,  all  this  had  actually  come  to  pass, 
and  in  the  visible  physical  forms  of  the  departing 
senators,  the  states  were  leaving,  never  to  return. 
Impenetrable  gloom,  foreboding,  and  thick  darkness 
settled  upon  the  Senate  Chamber,  and  the  soul  was 
troubled:  each  man  searched  his  heart  to  find  if  it 
were  he  who  had  dishonored  his  fathers,  and  had 
shortened  the  days  of  the  land  which  the  Lord  his 
God  had  given  him.  The  onlookers  thought  of  Web 
ster  and  his  prayer,  that  his  dying  eyes,  as  they  sought 
the  sun,  might  not  behold  it  shining  upon  a  torn  and 
rent  land,  and  they  cursed  the  hour  in  which  they 
themselves  were  witnessing  the  dissolution  of  the 
Union.  Woe  worth  the  day! 

When  the  scene  was  over  and  the  open  air  had 
been  reached,  those  who  had  been  looking  on  this 
spectacle  heaved  a  long  breath  and  betook  themselves 
to  their  homes.  As  the  crowds  streamed  along  the 
Avenue,  it  was  apparent  that  something  great,  some 
thing  direful,  had  happened.  The  southerners  walked 
with  their  heads  in  the  air,  and  talked  in  excited  and 
defiant  tones ;  the  northerners  had  their  heads  down, 
and  spoke  in  fitful  and  bated  breath ;  then  they  tried 
to  shake  off  their  forebodings,  and  to  throw  the  burden 
of  the  day  upon  the  seceders.  They  recalled  the  un 
gracious  conduct  of  Florida,  who,  with  scarcely  time 
enough  to  warm  herself  by  the  council  fire,  had  been 
the  first  to  reproach  her  fellows  with  inhospitality : 
how  wrong  it  had  been  in  her  to  come  into  the  Union, 
knowing  the  unhappy  condition  of  feeling  which  ex- 


6  INTRODUCTORY. 

isted,  when  her  presence  increased  the  number  of  the 
discontented ;  for  Florida  had  not  added  anything  to 
the  flag  but  her  star ;  she  had  brought  no  increase  of 
wealth  or  power ;  the  sole  dower  it  was  possible  for 
her  to  bring  was  fidelity,  and  this  she  had  withheld ; 
and  soon  the  reproach  of  Florida  had  grown  into  a 
sense  of  injury  against  the  whole  South,  which  un 
questionably,  as  far  as  material  advantages  were  con 
cerned,  had  gained  from  the  Union  more  than  she  had 
contributed. 

By  the  time  that  the  people  began  to  separate,  and 
branch  off  into  the  different  directions  that  led  to 
their  homes,  the  northerners  had  regained  their  voices, 
which,  indeed,  for  some  time  had  been  pitched  high  in 
argument  and  in  sharp  retort,  and  when  the  doors 
closed  upon  them,  the  sense  of  the  South' s  wrong 
towards  the  North  was  uppermost,  the  sense  of  the 
North's  right  controlled  their  minds,  and  the  deter 
mination  not  to  let  the  South  go  out,  or,  as  it  was  ex 
pressed,  the  resolution  to  "  maintain  the  Union,"  had 
become  fixed  and  unalterable.  The  crowds  at  the 
hotels  were  divided :  the  southerners  exulting  in  high 
voice  over  the  event  of  the  day,  and  asserting  the 
resolution  of  the  South  to  achieve  its  independence, 
and  its  capacity  to  maintain  it  against  any  attempt  at 
prevention  by  the  North.  They  were  greatly  elated, 
and  their  predictions  of  the  course  of  secession  as 
sumed  that  every  state  south  of  Mason  and  Dixon's  line, 
and  of  the  Ohio  and  the  Missouri  rivers,  would  speed 
ily  follow,  and  that  the  year  would  not  close  without 
the  South  receiving  applications  from  northern  states 
for  membership  in  the  new  confederation.  The  ex 
cited  imagination  of  the  southerner  pictured  the  por- 


RESOLUTION  OF  THE  NORTHERNERS.         1 

tions  of  Ohio,  Indiana,  and  Illinois  which  bordered  on 
the  beautiful  river,  breaking  off  from  their  old  alle 
giance  and  turning  their  faces  southward,  instead  of  to 
wards  Washington ;  even  the  greatest  city  and  port  of 
the  country,  New  York,  refusing  to  have  its  commu 
nication  cut  off  from  the  most  productive  soil  of  the 
land  and  the  greatest  extent  of  territory,  would  join 
her  fortunes  to  those  of  the  South.  Then  her  state 
would  follow,  and  New  England,  the  detested  New 
England,  would  be  completely  isolated,  and  the  day 
might  come  when  the  whole  Union  would  be  reorgan 
ized,  with  New  England  and  her  western  progeny  left 
out.  Thus,  in  the  strife  for  supremacy  between  New 
England  on  one  side  and  South  Carolina  on  the  other, 
South  Carolina  was  to  be  uppermost,  with  the  north 
ern  firebrand  quenched  and  cast  aside.  In  the  babel 
of  voices  the  accentuated  tone  of  the  northerner  was 
little  heard;  the  southerner  ruled  the  hour  and  his 
peculiar  accent  filled  the  air. 

The  southerners  unquestionably  relied  upon  the 
sympathy  of  the  democratic  party  at  the  North  for 
staying  the  hand  of  coercion.  Nevertheless,  wherever 
the  news  of  this  day's  work  reached  in  the  North,  it 
met  but  one  reception.  The  northerner,  Democrat 
though  he  might  be,  did  not  give  way  to  his  feelings : 
he  brooded,  and  when  he  spoke,  it  was  to  tell  his  son 
that,  come  what  may,  the  Union  had  to  be  preserved ; 
that  for  the  southerner  to  say  he  was  going  "  out  " 
was  one  thing,  but  for  him  to  do  it  was  another ;  the 
North  would  have  something  to  say  about  that,  too ; 
never  again  should  there  be  another  such  scene  in 
the  United  States  Senate.  There  was  no  mistaking 
the  resolution  of  the  northern  people,  and  the  South 
felt  it.- 


8  INTRODUCTORY. 

That  which  took  place  in  the  Senate  was  something 
which  never  before  had  occurred  in  the  recorded  his 
tory  of  people,  for  the  conditions  under  which  it  had 
taken  place  had  never  before  existed.  There  had  been 
confederations  in  plenty,  and  confederations  which  had 
broken  up  in  dissension ;  but  never  before  had  there 
been  a  government  delegated  by  sovereign  states, 
which  had  been  dissolved  by  the  action  of  its  indi 
vidual  constituents.  Secession,  as  the  American  un 
derstood  the  term,  was  peculiar  to  the  form  of  govern 
ment  known  as  the  United  States ;  for  this  was  not 
a  mere  federation,  it  was  a  union,  that  is,  a  group  of 
states  consisting  of  a  purely  artificial  central  power, 
endued  with  attributes  of  sovereignty  by  the  sovereign 
states,  who  delegated  certain  powers  for  the  purpose  of 
creating  a  qualified  and  limited  sovereign.  This  arti 
ficial  sovereign  was  Stella  nova  in  political  history ; 
but,  artificial  as  it  was,  it  was,  within  the  purposes  of  its 
being  and  the  limitations  which  had  been  set  upon  it, 
sovereign.1  It  presented  the  anomaly  of  a  being  with 
certain  attributes  of  sovereignty  (among  which  was 
perpetuity),  created  by  agreement,  and  with  its  sov 
ereignty  delegated,  limited,  and  defined  by  a  written 
instrument. 

To  effect  such  a  strange  creation,  it  is  evident  that 
the  parties  to  it  must  have  been  equal  and  willing ; 
and  as  it  contemplated  multiplication  of  parties,  and 
growth,  or,  rather,  accretion  of  states  from  territory 
already  possessed,  but  not  contained  within  state  lines, 
it  is  evident,  too,  that  the  new  members  of  the  family 
were  also  to  be  equal  and  willing.  The  result  was 
a  family  of  states,  and  the  relations  of  members  of  a 

1  See  Ireclell's  opinion  in  Chisholm  v.  Georgia,  2  Dallas,  435. 


REPRESENTATION.  9 

family,  as  well  as  the  obligations  of  parties  to  a  con 
tract,  implied  equality  and  consent.  There  could  not 
be,  then,  under  the  written  instrument  or  Constitu 
tion,  anything  like  inequality,  and  as  the  rule  of  the 
majority  was  inherent  in  the  federal  system,  the  con 
sent  of  all  was  presumed  when  any  act  of  the  confed 
eration  had  been  ordained  by  a  majority  of  voices. 
In  order  to  effect  this  union,  the  two  elements  of  peo 
ple  and  states  were  represented  in  a  House  of  two 
Chambers,  in  one  of  which  sat  the  representatives  of 
the  states,  and  in  the  other  those  of  the  people.  This 
frame  of  government  constituted  the  Union.  •  It  is 
clear  that  it  was  neither  a  federation  nor  a  confedera 
tion,  merely,  for  then  there  would  be  no  need  of  a 
representation  of  the  people;  a  representation  of 
states  would  be  all  that  was  required.  Why  was 
there  a  representation  of  the  people?  Because  this 
government,  created  by  the  states,  was  intended  to 
act,  within  its  delegated  powers,  directly  upon  the  citi 
zens  of  a  state,  as  well  as  upon  a  state.  A  chamber, 
then,  in  which  would  sit  the  representatives  of  the 
people,  was  as  necessary  as  one  in  which  would  sit  the 
representatives  of  the  states.  If  the  states  alone  met 
by  their  representatives,  the  body  which  these  state- 
representatives  composed  would  be  a  council,  a  collec 
tion  of  embassadors,  for  the  states  as  sovereigns  could 
be  represented  by  plenipotentiaries  only,  and  the  form 
of  government  would  be  merely  a  federation.  But, 
for  the  purposes  of  their  being,  the  states  which  formed 
the  new  creature,  considered  it  essential  that,  in  their 
collective  capacity,  they  should  exercise  power  over  the 
individuals  who  composed  the  citizens  of  the  different 
states ;  they,  therefore,  ordained  the  representation  of 


10  INTRODUCTORY. 

these  individual  citizens,  but  restricted  its  action  to 
legislation  strictly,  and  this  legislation  was  to  be  shared 
by  the  states.  This  qualified  the  pure  and  simple  ex 
ecutive  character  of  the  Senate,  and  made  it  legisla 
tive,  as  well  as  executive :  for  the  primary  character 
of  the  Senate,  being  an  assembly  of  plenipotentiaries, 
was  executive.  No  embassador  can  legislate  for  his 
government,  he  can  execute  only.  A  collection  of 
plenipotentiaries  may  counsel  and  advise,  but  this  is 
not  legislation ;  and,  even  when  it  assents  to  an  execu 
tive  act,  this  is  not  pure  legislation,  but  is  confirma 
tory  of  executive  action  in  the  past,  or,  by  anticipation, 
confirmatory  of  that  in  the  future.  This  council  of 
embassadors,  therefore,  would  have  remained  a  mere 
council,  had  not  the  Constitution  gone  farther,  and 
ordained  that  the  states,  through  their  representatives, 
should  take  part  in  the  legislation  of  the  country,  — 
a  provision  which  modified  the  character  of  the  coun 
cil  and  invested  it  with  a  legislative  character,  and 
the  Senate,  consequently,  was  henceforth  to  be  a  leg 
islature,  as  well  as  a  council.  Its  character  as  an 
adviser  was  cut  down  to  being  adviser  of  the  head  of 
the  executive  branch  of  the  government,  who  was  to 
be  styled  President,  and  whose  power  was  limited  to 
executing  the  laws  enacted  by  the  legislature,  except 
where  special  conditions  and  duties  were  laid  down  in 
the  Constitution  ;  its  character  as  an  executive  branch 
of  the  government  was  restricted  to  foreign  relations 
and  to  giving  its  assent  to  certain  functions  of  the 
President,  and  its  character  as  a  legislature  was  fixed 
by  requiring  its  passage  of  the  laws. 

Power,  as  we  see,  is  greatly  restricted  in  the  House 
of  Representatives,  which  can  legislate  merely.     The 


REVERENCE  FOR    THE  SENATE.  11 

power  of  the  Senate  to  legislate  is  shared  by  the 
House  and  by  the  President,  whose  signature  to  an 
act  cannot  be  supplied  except  under  the  limitations 
strictly  prescribed  by  the  Constitution  ;  and  its  power 
to  execute  is  shared  also  with  the  President.  As  for 
the  President,  he  was  to  execute,  and  this  in  part 
under  the  control  of  the  Senate ;  his  power  to  legislate 
was  restricted  to  allowance  or  disallowance,  and  this 
could  be  overridden  by  a  two  thirds  vote  of  the  legis 
lature. 

Here  we  see  fusion  of  powers  in  different  branches, 
but  so  restricted,  divided,  and  balanced  among  these 
branches,  or  departments,  of  government,  that  neither 
could  act  at  the  expense  of  the  other  —  if  the  Consti 
tution,  to  support  which  the  most  solemn  oaths  were 
taken,  was  regarded,  and  if  the  people,  whose  watch 
fulness  was  taken  for  granted  by  the  founders,  were 
worthy  of  their  liberties,  and  were  equal  to  the  task 
of  preserving  them. 

Nothing  could  exceed  the  reverence  with  which  the 
Americans  regarded  their  Senate,  so  long  as  their 
reverence  for  the  states  retained  its  original  vigor. 
The  House  of  Representatives  was  an  assemblage  of 
themselves ;  but  when  they  approached  the  Senate 
Chamber,  their  feelings  were  far  different  from  those 
they  entertained  when  approaching  the  House.  In 
the  latter  case,  they  came  as  citizens,  as  individuals  of 
the  people ;  but,  in  the  other,  they  came  as  sovereigns, 
and  their  hearts  beat  high  with  the  pride  of  sover 
eignty.  In  that  chamber  sat  their  embassador  in 
equality  with  other  embassador s.  In  the  House  of 
Representatives  they  had  little  to  call  forth  feelings 
other  than  those  which  accompanied  them  daily  where- 


12  INTRODUCTORY. 

ever  they  might  be,  in  their  down-sitting  and  their  up 
rising  ;  but,  in  the  Senate  Chamber,  —  it  was  there  that, 
above  all  places  in  the  world,  they  felt  their  state-hood. 
Could  they  not  see  their  state,  the  state  itself,  before 
their  very  eyes,  and  hear  it  in  the  voices  of  the  two 
men  who  sat  in  plain  view  ? 

Thus  it  was,  that  the  American  who  looked  upon 
the  departure  of  the  southern  senators  from  the  Senate 
Chamber  was  grieved  and  shocked  beyond  expression. 
To  him  the  dissolution  of  the  Union  itself  was  going 
on  before  his  eyes  ;  than  which  there  could  be  no  more 
distressing  spectacle,  unless  it  were  the  rupture  of  his 
own  family  and  its  dispersion  from  the  ancient  hearth. 

The  great  civil  war,  which,  in  the  seventh  decade  of 
the  XlXth  century,  for  four  years  rent  the  United 
States  of  America  in  twain,  was  the  result  of  the  in 
congruous  junction,  under  one  government,  of  two  con 
flicting  forms  of  society.  From  the  time  in  which  the 
British  colonies  on  the  Atlantic  seaboard  revolted, 
asserted  their  existence  as  states,  and  united  under  the 
Articles  of  Confederation,  there  had  been  two  peoples 
in  this  land  calling  themselves  one  people,  and  two 
forms  of  society  passing  themselves  off  as  a  single 
form.  To  all  appearance,  there  was  but  one  people, 
for  they  had  had  the  same  origin ;  they  had,  too,  the 
same  tongue  and  the  same  religion,  but  their  localities 
were  different,  and  so  were  their  material  interests  and 
their  habits.  More  significant  than  any  other  differ 
ence  were  the  ways  in  which  they  viewed  society,  its 
foundation,  its  form,  its  spirit,  and  its  end.  Climate, 
topography,  products  of  water  and  soil,  tended  to 
make  the  divergence  between  these  elements  wider, 


TWO  FORMS   OF  SOCIETY.  13 

with  a  rapidity  which  the  lack  of  every  kind  of  the 
restrictions  to  which  they  had  been  subjected  in  the 
land  of  their  origin,  rendered  marvellous.  For,  when 
the  rebellious  colonies  came  together  at  Philadelphia, 
the  difference  between  the  North  and  the  South  was 
greater  than  it  is  now  that  the  South  has  undergone 
thirty  years  of  assimilation  with  the  North.  In  1775 
this  difference  was  apparently  fixed  and  unchangeable. 
The  northerners  presented  the  characteristics  which 
the  people  of  cold  climates  always  display :  they  were 
prolific,  insensible  to  change  of  temperature,  saving, 
hard-working,  of  religious  fervor,  but  tending  to  in 
credulity,  skeptical  in  matters  of  politics,  as  well  as 
in  those  of  religion,  and  as  venturesome  in  experi 
ments  of  government  as  they  were  in  scouring  un 
known  seas ;  and  the  most  striking  and  pregnant 
characteristic  of  all,  and  the  one  which  exerted  the 
greatest  effect  upon  the  settlement  of  the  country, 
was  that  they  were  disposed  to  be  migratory.  The 
southerner's  notion  of  home  was  a  fixed  habitation, 
around  which  was  to  cluster  the  traditions  and  asso 
ciations  of  twenty  generations:  the  longer  it  lasted, 
the  more  it  was  a  home,  and  "  home  "  was  limited  to 
"family."  The  northerner's  notion  was  much  more 
abstract ;  his  neighborhood  was  more  to  him  than  the 
soil  was ;  home  was  where  his  neighborhood  was,  and 
it  might  be  said  to  include  the  neighborhood.  The 
house  might  be  a  log-cabin,  or,  like  the  Virginian's, 
be  built  of  bricks  brought  from  England ;  but  his 
pride  in  it  depended  upon  the  effect  of  the  display  his 
wealth  had  upon  his  importance  in  the  community ; 
his  home  lay  where  his  family  and  the  neighborhood 
were.  The  form  of  society  characteristic  of  the  north- 


14  INTRODUCTORY. 

erner,  therefore,  was  founded  upon  the  neighborhood; 
it  was  centralized,  consolidated ;  but,  as  the  world 
knows,  the  form  of  society  characteristic  of  the  south 
erner  was  founded  upon  the  plantation :  it  was  dis 
persed,  the  members  of  it  were  isolated,  and  it  was 
patriarchal  in  nature.  The  form  each  American  lived 
under  exerted  a  great  influence  upon  his  character,  his 
affections,  his  ambition,  his  fears  and  hates,  his  mode 
of  life,  and,  especially,  upon  the  view  he  took  of  the 
end  and  aim  of  his  life-work.  The  southern  family 
was  thrown  upon  its  own  resources :  intercourse  with 
the  nearest,  yet  distant,  neighbor,  was  a  state  affair ; 
but  the  northerner  lived  in  the  midst  of  numbers ; 
intercourse  was  the  daily  round  of  his  life,  and  inter 
course  not  formal  and  with  his  equals  only,  but  infor 
mal,  common,  and  with  every  class  of  society.  To 
the  seclusion  of  the  southerner  he  opposed  sociality ; 
to  his  exclusion,  freedom  of  intercourse  ;  his  sociabil 
ity  showed  itself  in  every  form  and  place  ;  his  servants 
were  not  restricted  to  "  quarters ; "  they  sat  at  the 
same  board  and  broke  the  same  bread,  but  they  sat 
below  the  salt.  It  must  be  owned  that  when  he  went 
to  church,  that  is,  when  he  said  his  prayers  in  public 
instead  of  in  private,  the  social  line  of  demarcation 
was  made  more  striking ;  then  the  servants  who  had 
knelt  on  the  same  floor  with  him  in  the  morning, 
at  high  noon  were  gazing  at  him  from  "  the  loft." 
But  the  distinction  between  the  northern  and  the 
southern  social  forms  are  unmistakable ;  one  was 
where  society  lacked  sociability,  the  other  was  where 
it  was  almost  entirely  sociable;  in  one  region  it 
was  founded  upon  land,  in  the  other,  upon  personal 
property ;  here  labor  was  dishonorable  and  was 


DIFFERENCES   OF  SOCIAL  FORMS.          15 

owned,  there  it  was  honorable  and  compensated.  The 
fact  that  all  the  northern  colonies  were  slave  colo 
nies  in  the  XVIIIth  century  signifies  nothing,  in 
view  of  the  greater  fact  that  northern  society  was 
getting  rid  of  slavery  as  fast  as  it  could  do  so.  This 
fact  has  significance,  for  it  shows  that  sentiment  and 
interest  in  the  North  were  already  against  slavery, 
while  society  in  the  South  was  actually  founded  upon 
it ;  for,  in  an  agricultural  slave  country,  land  and 
slave  cannot  be  separated ;  one  implies  the  other.  The 
South  was  restricted  to  agriculture ;  the  North  took 
to  the  sea,  it  navigated,  it  traded,  it  shaped  materials 
into  new  forms,  and  already  the  signs  were  abounding 
that,  but  for  the  persistent  opposition  of  Parliament 
to  colonial  manufacture,  New  England  would  be  a 
manufacturing  country. 

The  northern  proclivities  and  habits  of  thought,  too, 
differed  greatly  from  those  of  the  South.  Religion 
entered  into  everything,  down  to  the  close  of  the 
XVIIth  century,  so  much  so  as  to  impress  the 
XVIIIth  century  very  markedly.  Ancient  New  Eng 
land  religious  life  was  built  upon  the  Old  Testament, 
and  was  gloomy,  severe,  absorbing,  and  exacting. 
There  was  little  mercy  in  the  early  New  Englander's 
justice.  Ancient  southern  religious  life  was  built 
upon  the  New  Testament ;  it  did  not  affect  manners 
austerely,  and  the  justice  of  the  southerner  was 
humane.  The  middle  class  cut  a  small  figure  in  the 
South ;  in  the  North  it  was  all-important.  Education 
in  the  South  was  exceedingly  restricted,  yet  purer 
English  was  spoken  nowhere  than  here ;  an  exception 
to  this  defective  education  was  to  be  found  in  the  pro 
fessional  learning  of  the  bar,  which,  crude  as  it  may 


16  INTRODUCTORY. 

seem  to  us  now,  nevertheless  produced  not  a  few  law 
yers  of  erudition.  In  New  England,  education  began 
in  the  cradle  ;  as  might  be  expected  of  the  descendants 
of  the  most  learned  body  of  immigrants  ever  known. 
The  atmosphere  of  the  plantation  was  conducive  to 
reflection  and  to  self -analysis ;  that  of  the  northern 
village  and  township  favored  the  study  of  others,  and 
was  more  conducive  to  observation  than  to  meditation. 
The  New  Englander  was  a  .quick-witted  being  ;  he  was 
acute  —  so  much  so  as  to  be  a  standing  target  for  the 
witticism  of  the  South.  There  was  no  mechanical 
skill  where  society  rested  upon  slavery ;  there  were  no 
artisans,  for  there  were  no  towns,  and  the  simple  needs 
of  the  plantation  were  supplied  by  slaves.  There  was 
no  demand  for  white  mechanics,  and  this  brought 
mechanical  skill  into  disrepute.  Even  Jefferson1  re 
garded  mechanical  labor  unbecoming  in  a  white  per 
son.  The  antipathy  to  white  labor  was  inveterate ; 
for,  just  preceding  the  secession  of  the  eleven  states, 
the  northern  laborers  were  stigmatized  by  a  southern 
orator  as  "  greasy  mechanics,"  and  as  "  the  mudsills  of 
society."  No  one  ever  heard  of  invention  in  the 
South,  but  in  the  Northeast  every  farmhouse  had  a 
brain  busy  in  transferring  the  power  of  labor  to  wood 
and  iron,  and  in  multiplying  its  forces  by  machinery. 
From  the  beginning  of  the  XVIIIth  century,  the  New 
Englanders  had  displayed  great  aptitude  for  invention. 
In  the  South  the  planter  made  his  journeys  in  his 
barge  with  half-a-dozen  rowers,  or  in  a  coach  and  six ; 
a  carryall  marked  the  possession  of  wealth  in  New 
England,  and  the  great  man  generally  went  on  horse 
back.  As  there  was  little  or  no  home  trade  south  of 

1  State  of  Virginia,  275. 


THE  POOR    WHITES.  17 

the  Potomac,  there  was  no  need  of  money;  money, 
therefore,  existed  in  little  quantity,  and  for  a  long 
time  did  not  circulate  there  at  all.  Tobacco  provided 
the  standard  of  values  and  was  the  circulating  medium ; 
trade  was  conducted  by  barter.  In  the  North,  on  the 
contrary,  except  upon  the  frontiers,  money  was  in 
active  circulation.  Then,  as  now,  there  were  shops  in 
every  village  and  at  the  cross-roads,  as  well  as  taverns 
in  plenty. 

In  several  of  the  southern  colonies  there  were  but 
two  classes  of  whites,  the  planters  and  "the  poor 
whites ; "  an  impassable  gulf  separated  these  social 
constituents.  This  low  class  is  easily  accounted  for. 
In  the  XYIIth  century  Virginia  and  North  Carolina 
were  flooded  with  the  scum  of  England,  and  especially 
of  London.  This  was  not  altogether  from  free  and 
voluntary  immigration,  but  from  immigration  which 
was  organized  to  supply  the  colonies  with  labor.  The 
immigrants  were  in  pawn  until  their  labor  had  re 
deemed  and  enfranchised  them.  They  were  called 
"  redemptioners,"  and  they  came  over  and  were  sent 
over  by  thousands.  Criminals  and  the  incorrigibly 
vicious  were  shipped  along  with  them ;  sometimes  as 
the  result  of  municipal  action,  but  often  of  their  own 
motion,  for  undoubtedly  these  colonies  became  the  re 
treat  of  many  fugitives  from  justice,  and  of  those  who, 
if  not  criminals,  had  reason  to  shun  the  places  where 
they  were  known.  Much  good,  doubtless,  would  have 
been  derived  from  the  redemptioners  had  their  force 
been  sagaciously  directed,  but  they  were  drowned 
out  by  the  rapidly  inflowing  tide  of  slave  labor,  and 
thus  that  which  might  have  proved  beneficial  to  soci 
ety  became  an  evil.  In  the  end,  when  slavery  had 


18  INTRODUCTORY. 

possessed  the  land,  there  was  no  room  for  the  low 
whites ;  the  demand  for  their  labor  ceased,  and  they 
in  turn  ceased  to  labor.  They  sunk  at  once  to  a  very 
low  level,  and  they  never  rose  again.  Nothing  at  the 
South  was  held  in  such  abhorrence  as  the  "poor 
white."  Slavery  wronged  him,  indeed,  for  it  permitted 
him  to  act  no  other  part  in  life  than  that  of  a  vicious 
drone,  and  to  those  above  him  he  was  a  standing  ex 
emplification  of  the  calamity  in  store  for  the  white 
who  relied  on  his  own  labor.  He  was  really  lower 
than  the  slave,  if  that  were  possible.  This  social 
pariah  revenged  himself  upon  the  society  into  which 
unkind  fortune  had  flung  him,  for  he  aggravated  the 
contempt  for  labor  entertained  by  his  wealthy  neigh 
bor,  and  brought  upon  a  succeeding  and  distant  gen 
eration  the  punishment  which  the  northern  laboring 
classes  inflicted.  For  the  great  mass  of  the  northern 
army  represented  the  laboring  classes,  of  which  it  is 
safe  to  say,  that  they  took  the  field  against  the  South, 
not  so  much  for  the  love  of  the  slave  as  of  hatred  of 
the  aristocrat  who  owned  him. 

Thus,  alongside  of  each  other  lay  two  peoples  :  one, 
patriarchal,  which,  in  the  course  of  generations,  be 
came  aristocratic,  with  labor  owned  and  dishonorable ; 
the  other,  tending  more  and  more  to  democracy,  with 
labor  compensated  and  honorable.  After  the  country 
had  become  subdued  to  settlement  and  tillage,  com 
mercial  wealth  flowed  in  greater  stream  into  the  hands 
of  the  democratic  portion:  this  induced  constant  im 
migration  into  the  North,  which  thus  increased  in  num 
bers  and  wealth  with  astonishing  rapidity,  while  the 
aristocratic  portion  lagged  behind.  Power  gravitated 
to  the  North,  and,  therefore,  when  the  States  came 


RETROGRESSION  OF  THE  SOUTH.  19 

together  to  form  a  confederation,  the  South  eyed  ner 
vously  every  feature  of  the  Constitution  which  might 
throw  an  overweight  of  political  power  into  the  hands 
of  its  neighbor.  In  order  to  preserve  the  balance  of 
power  between  the  two  peoples,  representation  from 
the  South  in  the  general  council  was  augmented  by 
including  the  slave  population  distinctively  in  the 
basis  of  federal  representation,  or,  rather,  of  the  states 
represented  in  Congress.  Equality  of  the  states  was 
secured  by  ordaining  that  all  the  states,  irrespective 
of  population,  should  be  represented  in  the  assembly 
of  states  styled  the  Senate,  by  the  same  number  of 
representatives,  to  wit,  two.  Thus  the  South  and  the 
small  states  were  protected  against  the  menacing 
growth  of  the  North  and  the  great  states,  by  equality 
in  the  chamber  of  states,  and  by  a  compensating  in 
crease  of  representatives  in  the  chamber  of  the  peo 
ple.  This  compensation  in  representation  was  a  pre 
caution,  and  had  the  weakness  of  all  precautions ;  it 
was  liable  to  be  rendered  nugatory  by  change  of  con 
ditions,  and  this  change  at  last  took  place.  As  time 
wore  on,  it  became  clear  that  the  enormous  rapidity  of 
growth  on  the  part  of  the  North  had  not  been  ade 
quately  forecast  by  the  makers  of  the  Constitution, 
and,  as  concurrent  expansion  was  impossible,  owing 
to  the  non-expansive  capacity  of  slavery,  the  South 
apparently  lagged  behind :  in  reality,  it  had  been  dis 
tanced  in  the  race.  The  black  cannot  keep  up  with 
the  white  -race  in  any  respect ;  and,  as  this  contention 
for  supremacy  in  the  wealth  of  the  country  was  a 
contention  between  the  systems  of  labor  which  pro 
duced  this  wealth,  white  labor  soon  left  black  labor 
(and  with  it  the  society  founded  upon  it)  in  the  rear. 


20  INTRODUCTORY. 

Moreover,  the  nature  of  slavery  itself,  by  withholding 
the  reward  of  exertion  from  the  laborer,  and  by  di 
verting  the  fruits  of  toil  to  the  owner,  rendered  com 
petition  between  free  and  slave  labor  a  hopeless  task. 
Except  in  the  products  to  grow  which  white  labor  was 
unadaptable,  slave  labor  could  not  hold  even  its  own. 

The  career  of  the  slaveholders  as  tillers  of  the  soil, 
therefore,  was  easily  forecast,  and  this  forecast  af 
forded  slight  comfort  or  even  hope  to  the  southerner. 
The  supremacy  of  the  North  in  wealth  and  popula 
tion  was  speedily  assured ;  its  supremacy  in  political 
power  was  equally  a  matter  of  course,  and  became  a 
question  of  time  only.  The  most  important  legis 
lation  of  this  country,  consequently,  is  that  which 
relates  to  the  preservation  of  the  balance  of  power 
between  the  North  and  the  South.  From  the  nature 
of  the  Union,  a  family  relation,  this  legislation  neces 
sarily  took  the  form  of  compromise.  The  Constitu 
tion  of  the  United  States  was  so  essentially  a  com 
promise  in  what  related  to  slavery,  that  it  has  been 
acknowledged  by  contemporary  writers,  that,  without 
such  compromise,  this  Constitution  could  not  have  re 
ceived  adoption  by  the  southern  states.  Later  still, 
the  very  word  "  compromise  "  appears  as  the  title,  and, 
indeed,  motive,  of  legislation  in  the  famous  "Missouri 
Compromise,"  and  in  "the  Compromise  of  1850,"  and 
the  last  efforts  of  the  venerable  Crittenden,  when  the 
pillars  of  the  Union  were  actually  falling  around  him, 
were  aimed  at  compromise.  "  This  is  a  government 
of  '  compromise,' "  said  Henry  Clay,  "  and  I  have 
passed  my  life  in  maintaining  compromise." 

There  was  a  reason  for  vigilance  other  than  that  re 
quired  by  the  contention  for  preponderance  of  sectional 


EQUALITY   OF  THE  STATES.  21 

power,  and  this  was  the  carefully  guarded  equality  of 
the  states  ;  this,  alone,  would  forbid  any  member  of  the 
family  to  admit  the  superiority  of  a  fellow.  Equality 
of  the  states  was  a  great  fundamental  notion  of 
Union.  There  could  in  nature  be  no  union  of  un- 
equals,  and  thus  this  principle  of  equality  becomes  of 
the  utmost  importance,  the  primal  necessity,  indeed, 
to  the  preservation  of  the  Union.  For  union  is  not 
the  mere  physical,  visible,  and  tangible  collection  of 
bodies  politic ;  this  would  be  union  without  spirit  and 
soul.  The  greatest  force  of  union  is  its  moral  force 
—  the  union  of  the  different  characters  of  the  various 
sections,  their  ideas  and  their  principles,  and,  to  this 
end,  the  constituents  of  union  must  have  absolute  free 
dom  of  speech  and  of  action  under  the  limitations  im 
posed  by  themselves  upon  themselves.  Nothing  can 
be  clearer  than  that,  to  exert  this  freedom  of  action, 
equality  of  the  members  is  of  the  first  necessity,  for 
how  can  there  be  absolute  freedom  where  one  is  sub 
ject  to  another,  directly  or  indirectly,  immediately 
or  remotely?  For  the  maintenance  of  the  Union, 
then,  nothing  was  more  strongly  insisted  upon  by  the 
founders  of  the  government  than  the  equality  of 
the  states,  and  no  principle  ever  attained  such  sanc 
tity  in  the  eyes  of  the  Americans  as  this  one.  It  was 
supposed  to  be  inviolable,  for  each  and  all  recognized 
the  fact  that,  if  it  ever  failed  to  be  the  paramount 
principle,  "this  Union,"  as  the  Constitution  styles 
it,  wrould  no  longer  exist ;  a  "  Union  might  exist 
(indeed,  another  union  would  have  to  be  substituted 
for  the  ruined  one),  "a  union  whereof  one  section  is 
pinned  to  the  residue  by  bayonets ; "  but  that  such  a 
union  was  not  the  one  constituted  is  clear  and  plain. 


22  INTRODUCTORY. 

Equality  of  the  states,  therefore,  was  the  fundamental 
principle  of  union  among  the  Americans,  the  one 
sacred  principle,  to  touch  which  was  profanity,  and  it 
was  guarded  by  the  instinct  of  self-preservation,  as 
well  as  by  the  organic  law. 


CHAPTER  II. 

FEDERAL   UNION;   REPRESENTATIVE   DEMOCRACY. 

The  Anglican  Revolution ;  descent  of  power  from  ruler  to  people  — 
Aristotle's  "  constitution  "  and  "government"  —  Contributions  of 
different  colonies  to  the  modern  Union  —  Contributions  of  the 
United  States  to  the  science  of  government  —  Federal  Union  — 
Representative  Democracy  —  Three  great  events  in  North  Amer 
ican  history  —  The  most  striking  physical  characteristics  of  the 
British  colonies  in  America. 

HE  who  would  know  the  whole  extent  and  char 
acter  of  the  great  Anglican  Revolution,  which,  begin 
ning  in  the  latter  part  of  the  XVIth  century,  con 
tinued  its  course  to  the  closing  decade  of  the  XVIIIth 
century,  should  not  restrict  his  observation  to  the 
events  which  occurred  in  the  British  Islands,  but 
should  embrace  in  his  scrutiny  the  part  taken  by  the 
Americans  in  these  colonies  which  afterwards  became 
the  United  States.  For  the  story  is  not  complete 
without  the  parallel  and  supplementary  chapters  fur 
nished  by  these  colonies  to  the  history  of  the  Anglican 
Revolution. 

Down  to  the  reign  of  William  and  Mary,  we  hear 
little  of  the  "  constitution  ;  "  after  this  reign  the  word 
meets  us  on  all  sides,  and  by  the  time  that  Walpole 
sought  recreation  from  state-craft  by  riding  to  hounds 
at  the  county  meet,  the  standing  toast  among  the 
squires,  next  to  that  of  "  the  king,"  had  long  been 
"  our  glorious  constitution !  " 


24  FEDERAL   UNION. 

The  explanation  of  this  fact  is,  that  from  the  death 
of  Henry  the  Eighth,  power,  political  power,  began  to 
descend  from  the  throne ;  its  movements  were  erratic 
and  contradictory;  sometimes  it  rushed  downward, 
then  retraced  its  steps,  but,  taking  its  whole  action 
together,  it  has  continued  its  descent  from  that  day  to 
this.  Its  tumultuous  course  during  the  XYIIth  cen 
tury  is  in  marked  contrast  with  the  orderly  and  grave 
progress  it  has  maintained  since  the  flight  of  James 
II.  It  rapidly  sought  the  people ;  it  ignored  the  no 
bles  and  beheaded  the  king.  The  Long  Parliament 
was  made  up  of  Presbyterian  squires  and  city  lawyers, 
but  Pride's  Purge  ousted  them  and  brought  in  the 
farmers  and  shopkeepers ;  Cromwell  cast  these  aside 
when  he  had  done  with  them,  and  when  life  had  done 
with  him,  the  king  had  his  own  again,  and  the  old 
regime  held  sway  more  merrily  than  ever.  But  the 
earnest,  convulsive  workings  of  a  century  could  not 
terminate  in  such  futility  as  was  this  mere  doubling 
of  tracks.  Revolution  righted  itself  and  resumed  its 
march.  The  Stuart  dynasty  was  overthrown,  and  the 
results  of  revolution  were  stored  up  in  the  Exclusion 
Bill,  the  Bill  of  Rights,  and  the  Habeas  Corpus  Act. 
The  royal  prerogative  was  defined  and  limited ;  Parlia 
ment  was  organized,  lastingly,  fixedly  organized,  the 
nobles  were  cooped  up  in  a  House  of  Lords,  and  the 
commons,  flown  with  authority,  and  with  the  purse  and 
the  sword  to  maintain  it,  thronged  the  lower  House. 
When  noses  were  counted,  it  was  found  that  the  com 
mons  meant  the  squirearchy ;  the  landed  interest,  the 
rural  gentry,  were  "in,"  and  there  they  remained 
until  Chatham  sounded  the  note  for  their  downfall. 
When  the  British  people  emerged  from  the  revolu- 


THE  DESCENT  OF  POWER.  25 

tion  of  1688  they  had  effected  that  which  their  ances 
tors  had  failed  to  achieve ;  they  had  given  their  coun 
try  a  constitution,  a  structural  frame  of  statehood, 
under  which  the  powers  of  the  sovereign  were  re 
stricted  ;  the  executive  and  legislative  functions  were 
separated ;  the  judiciary  was  independent  of  the  ap 
pointing  power,  as  well  as  of  those  who  were  to  be 
judged,  and  the  citizen's  rights  and  liberties  were 
clearly  ascertained  and  guarded.  The  forces  of  gov 
ernment  were  no  longer  susceptible  to  confusion,  nor 
to  concentration  in  one  hand.  Power  was  distributed 
and  made  accountable,  and  rights  were  ascertained  and 
were  to  be  respected.  England  at  last  had  a  constitu 
tion.  Political  power,  in  its  early  efforts  to  get  away 
from  the  throne,  had  ignored  the  great  nobles  of 
Simon  de  Montfort's  day ;  at  the  accession  of  William 
and  Mary  it  established  the  throne  more  firmly,  but 
restricted  the  action  of  its  occupant ;  it  had  done  a 
king  to  death.  When  its  reconstructive  work  was 
nearly  over,  and  it  was  casting  about  for  a  resting- 
place,  it  remembered  the  lesson  of  Pride's  Purge ;  it 
would  descend  no  farther,  and,  turning  its  back  upon 
shopkeepers  and  shepherds,  it  took  up  its  abode  in 
the  manor-house.  One  ancient  characteristic  of  this 
power  is  lacking  since  1688  —  irresponsibility  ;  thence 
forth  political  power  is  accountable.  Another  century 
and  the  merchants  and  manufacturers  were  to  gain  its 
favor ;  but,  for  the  time  being,  the  squires  had  it  all 
to  themselves.  They  discarded  brown  October  for 
Port,  and  no  wonder  they  toasted  with  enthusiasm, 
"  Our  glorious  constitution." 

In  surveying  the  results  of  the  revolution  of  1688, 
it  is  impossible  to  come  to  any  other  conclusion  than 


26  FEDERAL    UNION. 

that  the  whole  movement  was  one  which  had  for  its 
aim  the  lessening  of  the  inequality  existing  between 
the  constituent  members  of  the  state.  The  throne  and 
the  great  nobles  had  been  shorn  of  authority  and  the 
commons  had  waxed  in  power.  The  distance  between 
the  sovereign  and  the  people  had  been  lessened.  This 
diminution  of  inequality  was  a  positive  gain  of  equal 
ity.  England,  it  is  true,  emerged  from  its  revolution 
with  the  old  classes  of  king,  lords,  and  commons ;  but 
the  power  of  the  state  was  in  the  hands  of  the  people, 
who  were  the  real  rulers,  and  who  retained  king  and 
lords  for  the  good  they  could  do  the  commonwealth. 
The  tables  were  turned ;  the  state  henceforth  made 
for  democracy,  and  with  such  effect,  that  the  modern 
assertion,  that  England  is  as  democratic  as  the  United 
States  are,  can  be  controverted  only  by  pointing  to  the 
monarchical  and  aristocratic  form  of  government. 
All  are  equal  in  the  courts ;  power  emanates  from  the 
people,  and  monarch  and  nobles  are  mere  conduits  or 
agents  of  this  power. 

The  chapters  of  American  history  that  are  parallel 
to  those  of  the  English  revolution,  those  from  1630  to 
1688,  tell  the  same  story.  The  conditions  under  which 
the  forces  of  society  acted  in  America  were  very  dif 
ferent,  but  the  aim  of  these  forces  was  the  same,  and 
the  result  was  democracy ;  representative  democracy, 
in  politics,  and  in  matters  of  conscience,  absolute 
freedom.  After  1688,  the  revolution  in  America 
continued  its  course,  interrupted  by  nearly  a  century 
of  repose  and  of  force-gathering,  until  1788,  when  it 
terminated,  after  protracted  convulsion  and  revolt,  in 
giving  to  the  world  a  form  of  government  unknown 


POPULAR  SOVEREIGNTY.  27 

until  then,  but  which  assumed  its  place  among  the 
governments  of  the  world  with  an  assurance  of  power 
and  stability  that  belonged  more  naturally  to  one  of 
ancient  growth.  This  form  of  government  is  known 
as  a  Federal  Union.  It  was  the  latest  form  of  Angli 
can  freedom.  Alliances  and  leagues,  federations  and 
confederations,  had  existed  in  numbers,  but  a  govern 
ment  which  was  the  creature  of  sovereign  states  that 
had  delegated  the  sovereign  powers  necessary  to  the 
exercise  of  its  functions,  and  which,  nevertheless, 
acted  directly  upon  the  citizens  of  these  creating 
states,  and  which,  at  the  same  time,  stood  in  external 
relation  to  the  rest  of  the  world  as  a  great  power,  had 
never  before  been  known  to  history.  These  states 
were  founded  upon  the  doctrine  that  the  sovereignty 
lay  in  the  people,  because  the  people  constitute  the 
source  whence  all  state-power  emanates.  It  is  true, 
that  where  the  real  power  of  a  state  lies,  there  resides 
the  sovereignty,  and  that,  judged  by  this  standard,  the 
sovereignty  of  Great  Britain  must  lie  in  the  commons, 
who  are  the  repository  of  power ;  nevertheless,  the 
British  people  disclaim  the  notion  that  the  sovereignty 
reposes  anywhere  but  in  the  throne ;  that  is  to  say, 
they  invest  the  occupant  of  the  throne  with  the  attri 
butes  of  sovereignty,  they  make  him  the  repository 
of  sovereign  powers,  and  carry  out  the  principle  of 
personification  to  the  extent  of  styling  him  "the 
sovereign."  It  is  evident  that  the  great  Anglican 
revolution  took  a  step  in  America  farther  than  it 
had  taken  in  England ;  for  in  America  it  did  not  stop 
until  every  revolting  colony  had  become  a  state,  built 
upon  the  expressed  principle  that  the  state  is  a  com 
monwealth,  and  that  sovereignty  lies  in  the  people 


28  FEDERAL    UNION. 

and  nowhere  else.  It  is  in  accordance  with  this  prin 
ciple  that  the  chief  official  of  an  American  state  was 
made  the  agent  merely  of  sovereign  power,  and  was 
styled  "  the  Governor,"  and  that,  later  on,  the  style  of 
the  chief  official  of  the  United  States  was  restricted 
to  one  almost  barren  of  importance,  and  was  called, 
"  the  President." 

Aristotle l  says,  that  the  words  "  constitution  "  and 
"  government "  have  the  same  meaning,  and  that  gov 
ernment  is  the  supreme  authority  in  states.  He  also 
says  that  when  the  citizens  at  large  administer  the 
state  for  the  common  interest,  the  government  is 
called  by  the  generic  name,  a  constitution  (TroAcreia).2 
Modern  publicists,  with  the  rich  examples  of  constitu 
tional  states  before  them,  and  especially  the  Anglican 
commonwealths,  will  not  entertain  for  a  moment  the 
confusion  of  the  term  "  constitution  "  with  that  of 
"  government ;  "  as  well  confound  the  soul  with  the 
action  of  the  body.  Government  is  the  application  of 
the  ruling  forces  of  the  state ;  Dahomey  has  a  govern 
ment,  but  one  would  hardly  venture  to  attribute  to  it 
a  constitution,  or  even  a  policy.  In  its  broadest  sense, 
government  is  the  art  of  governing ;  in  another  sense, 
it  is  the  method  and  manner  of  governing  a  particular 
country ;  in  another,  it  is  synonymous  with  the  state, 
and  in  a  still  more  restricted  use  of  the  word,  it  em 
braces  the  great  executive  officials  only  who  administer 
the  functions  of  the  state.  In  this  last  and  personify 
ing  sense,  it  has  been  employed  for  many  generations 
in  the  British  Islands  and  dependencies,  where  we 
hear  of  one  being  "  on  the  side  of  government ; " 
"  government  purposes  to  do  this  or  that ; "  "  what 
1  Politics,  III,  7  :  Jowett's  translation.  2  Id.  I,  79,  80. 


GOVERNMENT;  ADMINISTRATION.          29 

will  government  have  to  say?"  It  is  noteworthy 
that,  in  the  United  States,  the  term  "  administration  " 
is  invariably  used  to  express  this  personification.  This 
is  to  be  attributed  to  a  substantial  distinction  between 
the  modes  of  governmental  administration  in  the  two 
countries.  In  Great  Britain  all  statutory  enactments 
have  their  inception  in  the  cabinet ;  Parliament  acts 
only  upon  that  which  is  laid  before  it  by  the  minis 
ters.  In  the  United  States,  on  the  other  hand,  all 
legislation  has  its  origin  in  the  legislature  itself,  and 
the  President  and  cabinet  merely  administer  the  laws 
which  have  originated  in  and  have  been  enacted  by 
Congress.  It  is  clear  that  in  Great  Britain  the  cab 
inet  is  a  governmental  body  more  than  it  is  in  the 
United  States,  and  hence  it  is  that  the  British  people 
call  their  ministry  "government,"  and  that  the 
Americans  speak  of  the  President  and  his  cabinet  as 
"  the  administration."  Nevertheless,  the  use  of  the 
term  "  the  government "  is  common  with  the  Amer 
icans  in  personification  of  the  governing  power ;  but 
it  is  equally  noteworthy  that,  when  this  is  the  case, 
the  term  is  applied  to  the  President  and  cabinet  in 
the  exercise  of  functions  not  in  compliance  with 
special  enactment  for  the  case  in  hand,  but  which 
are  general,  and  dependent  more  upon  the  Constitu 
tion  than  upon  legislation,  or  where  the  legislation  is 
ancient  and  general,  or  where  the  function  is  one 
which  relates  to  the  President,  as  the  official  head  of 
a  great  power,  and  is  dehors  legislation  altogether. 
Thus,  where  a  difficulty  has  occurred  between  the 
United  States  and  one  of  the  great  powers,  the  ex 
pression,  "  What  action  will  the  administration  take  ?  " 
would  grate  upon  the  ear  of  an  American,  for  he 


30  FEDERAL    UNION. 

would  be  aware  that  there  would  be  no  law  of  Con 
gress  to  administer.  The  correct  expression  would 
be,  "What  action  will  the  government  take?"  for 
the  circumstances  present  conditions  for  the  exercise 
of  constitutional  powers,  or  those  conferred  by  early 
legislation,  and  not  of  administration  merely. 

If  these  examples,  sustained  by  the  ancient  and 
common  speech  of  two  distinct  peoples,  of  the  same 
race  and  tongue,  illustrate  the  popular  use  of  the 
word  "  government,"  it  is  clear  that  "  government "  and 
"  constitution "  have  not  the  same  meaning.  The 
lapse  of  two  thousand  years  has  created  a  distinction 
between  them.  Constitutions  now-a-days  are  written 
or  unwritten.  If  written,  they  embrace,  among  other 
things,  the  form  of  government.  We  see  the  different 
elements  denned  and  described  and  we  see  further  the 
lines  distinctly  marked  upon  which  they  are  to  act. 
Constitutions  contain  also,  in  few  but  very  clear 
words,  something  to  which  everything  else  contained 
in  them,  and  the  people  themselves,  must  be  subor 
dinate  without  gainsay  or  contradiction.  These  ex 
pressions  are  those  which,  whether  they  set  forth  the 
nature  of  government  or  the  rights  of  the  citizen,  may 
be  styled  the  utterance  of  the  very  soul  of  the  people 
thus  organized  into  a  state. 

There  is  only  one  way  of  estimating  the  constitu 
tional  character  of  a  people  —  by  its  comf ormity  or 
nonconformity  with  its  constitution,  written  or  un 
written;  for  in  this  constitution  will  be  found  the 
natural  expression,  and,  therefore,  the  spirit  of  the 
people.  If  the  constitution  be  unwritten,  then  it  is  to 
be  collected  from  certain  monumental  statutes,  judicial 
opinions,  charters,  or  events;  as  in  England  from 


THE  SOUL    OF  GOVERNMENT.  31 

Magna  Chart  a,  the  Habeas  Corpus  Act  of  Charles  II., 
and  the  statutes  which  marked  the  course  and  termina 
tion  of  the  revolution  of  1688,  and  others  which  dot 
the  records  of  legislation  down  to  the  Reform  bills  of 
the  XlXth  century.  Where,  too,  the  constitution  is 
unwritten  and  the  form  of  government  is  the  product 
of  time  and  tradition,  this  constitutional  form  may 
be  ascertained  from  the  visible  branches  themselves  of 
the  government.  A  constitution,  then,  embraces  the 
structure  of  the  state,  and  also  manifests  the  spirit  of 
the  state.  In  it  resides  the  soul  which  governs  the 
government.  So  positive  has  this  conception  become 
in  later  days,  that  the  modern  writers  are  few  who  do 
not  regard  the  state  as  a  moral  being.  This,  certainly, 
is  carrying  personification  to  a  far  point,  but  we  have 
just  seen  that  the  common  speech  of  the  English- 
speaking  people  sustains  the  publicists  in  this  po 
sition.  True  it  is,  that  of  the  Anglican  governments 
the  moving  spirit  is  embodied  in  their  constitutions.  1 
Few,  then,  will  question  Aristotle's  second  remark, 
that  when  the  citizens  at  large  administer  the  state  for 
the  common  interest,  the  government  is  called  by  the 
generic  name,  a  constitution.  For,  though  when  strictly 
analyzed  its  terms  cannot  be  completely  reconciled,  it 
contains  this  truth,  derivable  from  anglican  experi 
ence  of  the  last  two  centuries  —  that  a  popular  state, 
when  founded  in  sound  principles,  conducts  its  govern 
ment  by  certain  methods,  and  that  from  these  princi- 

1  In  respect  to  the  moral  attributes  of  a  state,  the  modern  writers 
merely  "  go  back  to  Aristotle  "  and  to  Plato.  For  the  Hellenic  no 
tion  of  this  element  of  state-being-,  and  for  the  reflection  of  a  people's 
nature  and  social  conditions  by  their  political  constitution,  and  for  the 
ethical  influence  of  constitutions,  see  Newman,  Politics,  I,  209-211, 
223  et  passim.  Compare,  too,  his  references  to  Plato. 


32  FEDERAL    UNION. 

pies  and  methods  a  constitution  can  certainly  be 
deduced:  -noXirda  cannot  bear  the  interpretation  of 
"  constitution,"  as  an  English-speaking  publicist  un 
derstands  the  term,  and  it  requires  all  the  weight  of 
Jowett's  name  to  make  it  do  so.  Nevertheless,  Aris 
totle's  remark  applies  with  singular  force  to  the  ex 
perience  of  modern  free  governments.  For  though 
England  unquestionably  had  a  constitution  previous 
to  the  revolution  of  1688,  it  was  an  imperfect  one, 
and  so  confused  and  ill  balanced,  and  so  faulty  was  it 
in  the  distribution  of  political  rights  and  powers,  that, 
until  this  revolution  had  wrought  a  change,  the  con 
stitutional  history  of  that  state  can  hardly  be  deemed 
to  have  set  in.  But  the  revolution  over,  we  behold 
two  things  :  the  commons  have  the  preponderance  of 
power,  that  is  to  say,  the  citizens  at  large  administer 
the  state  for  the  common  interest ;  and  forthwith  the 
government  is  called  a  constitutional  government. 

Thus,  though  Aristotle  doubtless  had  in  mind  a 
government  far  more  democratic  than  that  of  Great 
Britain,  the  general  truth  of  his  remark  is  sustained 
by  an  illustration  from  the  history  of  England.1 

1  It  must  be  borne  in  mind  that  Aristotle  could  not  have  had  the 
conception  of  a  constitution  nor  even  one  of  a  state,  such  as  dwells  in 
the  mind  of  an  English-speaking1  man  of  to-day.  The  only  notion  of  a 
state  that  he  gives  us,  is  that  of  the  City-state.  ' '  Of  Empire  —  of  the 
subordination  of  several  states  to  one  ruling  state  —  he  has  nothing  to 
tell  us ;  he  must  have  looked  on  such  a  form  of  union  as  artificial  and 
unnatural,  and  therefore  as  beyond  the  scope  of  his  inquiry.  Nor 
does  he  treat  of  federation,  or  the  union  of  several  states  under  a 
common  government  for  the  common  good ;  to  his  mind  the  City- 
state  should  need  no  help  from  other  states,  and  in  combining  with 
them  would  only  be  surrendering  a  part  of  its  own  essential  vitality." 
Politics,  1326  B  ;  Fowler's  City-state,  62.  Aristotle's  state  was  com 
posed  of  men  who  lived  the  highest  life,  and  whose  fealty  rested  on 
neither  fear  nor  force,  but  on  enthusiastic  patriotism  and  devotion. 


THE    WRITTEN  CONSTITUTION.  33 

It  was  in  Connecticut  that  the  written  constitution, 
if  not  for  the  first  time  exhibited  to  the  world,  first 
appeared  as  the  organizing  instrument  of  a  new  state ; 
and  first  became  indispensable  to  the  formation  of 
society  in  British  America.  The  circumstances  under 
which  it  appeared  account  for  its  importance.  A  few 
congregations,  dissatisfied  with  the  exclusive  and  over 
bearing  action  of  the  Massachusetts  oligarchy  (not 
ably  the  imposition  of  taxation  without  representation, 
though,  doubtlesss,  there  were  personal  and  doctrinal 
antagonisms  also),  left  the  shores  of  the  Charles  River 
and  sought  those  of  the  Connecticut.  Buried  in  the 
woods,  unknown  to  the  revolutionary  government  in 
England  and  uncared  for,  these  dissenters  from  dissent 
organized  their  society  into  what  eventually  proved  to 
be  a  state,  and  this  they  did  by  a  written  consti 
tution  establishing  representative  democracy.  About 
the  same  time,  other  dissenters  from  dissent  settled 
the  colony  of  Rhode  Island  with  the  avowed  purpose 
of  founding  a  commonwealth  where  all  should  be 
equal  and  no  man  should  be  called  to  account  for 
matters  of  conscience.  Thus  side  by  side  grew  up 
communities,  one  of  which  had  under  its  care  the 
fostering  of  a  state  founded  upon  representative  de 
mocracy  and  the  doctrine  that  the  governor  was  ac 
countable  to  the  governed  for  the  exercise  of  his 
power,  and  the  other  had  for  its  object  equality  of 
citizenship  and  the  development  of  absolute  freedom 
of  inquiry.  Across  the  line  remained  Massachusetts, 
the  colony  from  which  the  others  had  departed,  where 

Such  a  state  would  afford  scope  too  restricted  for  a  modern  consti 
tution.  "The  Politics,"  says  Newman,  I,  485,  "is  at  once  the  por 
traiture  of  an  ideal  state  and  a  statesman's  manual." 


34  FEDERAL    UNION. 

state  and  church  were  not  so  much  in  conjunction  as 
they  were  one  and  the  same  thing ;  where  freedom 
of  inquiry  was  regarded  as  a  bane  of  social  life,  and 
where  government  was  merely  rule  by  the  few.  In 
tolerance  flourished  luxuriantly  in  Massachusetts,  and 
democracy  and  free  inquiry  had  hard  work  to  keep 
their  footing  alongside  of  her,  in  Connecticut  and 
Rhode  Island.  Yet  the  necessities  of  those  rude  days 
compelled  the  few  handfuls  of  New  England  zealots  l  to 
confederate  —  the  first  step  towards  the  Union  that 
was  to  follow  a  century  and  a  half  later.  Thus  we 
behold  in  this  remote  spot,  written  constitutional  gov 
ernment,  and  the  shoots  of  representative  democracy, 
accountability  of  the  governing  .power,  free  inquiry, 
and  union,  taking  root  at  the  same  time.  In  the 
South  we  find  the  conservatism  of  the  landed  classes, 
and,  in  the  middle  colonies,  at  a  later  period,  the  free 
inquiry,  and,  strange  to  say,  the  equality  of  citzenship 
of  Pennsylvania  and  New  Jersey,  although  under  a 
government  almost  purely  palatine. 

It  was  these  things  which  entered  into  the  political 
life  of  the  several  colonies,  which  found  voice  in  the 
state  constitutions,  and  which,  at  a  later  day,  were 
stored  up  in  the  federal  Constitution.  In  them  lie 
our  vital  forces,  and  in  them  consists  the  real  federal 
Union  —  that  plant  of  slowest  growth,  but  of  com- 
pletest  maturity  known  to  our  institutional  race. 

The  most  noteworthy  contributions  of  the  United 
States  to  the  science  of  government,  have  been  the 
elements  of  union  between  separate  states  and  repre- 

1  With  the  exception  of  rejected  Rhode  Island  and  the  disdained 
settlers  along-  the  north  coast. 


CENTRAL   GOVERNMENT.  35 

sentative  democracy.  Federations  there  had  been  long 
before  this  government  was  organized,  and  representa 
tion  was  of  high  antiquity ;  but  representative  demo 
cracy  had  its  inception  in  this  land,  and  here  it  is,  also, 
that  the  principle  of  federation  for  the  first  time 
assumed  the  character  of  that  which  is  now  known  as 
"  the  American  Union."  Union,  in  this  sense,  means 
a  combination  of  sovereign  states,  wherein  a  central 
power,  created  by  the  members,  acts  for  all  combined 
into  one  whole  in  its  external  relations,  and,  in  their 
inter-relations  and  internal  administration,  has  juris 
diction  of  such  matters  only  as  are  prescribed  by  the 
constitution  creating  this  power.  In  America  it  is 
essential  to  the  notion  of  federal  union,  that  the  cen 
tral  government  should  possess  sovereignty  as  far  as 
it  is  delegated ;  that  it  act  upon  the  individual  citizens 
alike  in  all  the  states ;  that  it  should  act  upon  the 
states ;  that  it  have  the  three  great  divisions  of  politi 
cal  power,  to  wit,  executive,  legislative,  and  judicial ; 
that  its  legislature,  in  the  popular  branch,  should 
represent  the  people  of  each  and  every  state;  and 
that  its  upper  house  should  consist  of  the  representa 
tives  of  the  states  themselves ;  that  the  constitution 
ality  of  any  law  of  such  legislature,  or  Congress, 
should  be  determined  by  the  courts,  and  that  the  chief 
executive  officer  should  not  be  clothed  with  so  much 
as  a  vestige  of  sovereignty,  though  he  is  to  execute 
the  powers  of  government.  This  Union,  like  each  of 
the  states  composing  it,  rests  upon  the  principle  that 
sovereignty  lies  in  the  people. 

Such,  in  a  few  words,  is  the  notion  of  a  federal 
union  conceived  of  in  America.  It  is  the  principle  of 
federation  carried  to  the  latest  stage  of  development 


36  FEDERAL    UNION. 

—  to  the  stage  where  it  is  in  combination  and  in  equi 
librium  with  the  principle  of  nationality.  First  in 
historical  order  comes  the  grouping  of  neighborhoods, 
no  matter  how  formless,  as  were  the  Connecticut 
towns.  Next  is  the  combination  of  political  bodies, 
no  matter  how  loose,  so  long  as  the  parties  to  the  com 
bination  act  as  political  units,  are  unrestricted,  and  do 
declare  the  purposes  of  combination,  which  purposes 
are  purely  political ;  this  is  confederation,  such  as  that 
of  the  United  Colonies  of  New  England  in  1643,  and 
that  of  the  United  States  of  America  in  1781 :  so 
far,  however,  we  see  no  central  body  or  government 
embracing  the  three  functions  of  government,  and 
none  which  can  compel  the  compliance  of  individual 
citizens ;  but  next,  and  lastly,  such  a  body  or  govern 
ment  does  appear ;  the  citizen  owes  obedience  in  two 
jurisdictions,  and  that  which  an  American  calls  "a 
Union"  exists.  The  principle  of  federation,  in  the 
course  of  its  development,  has  finally  assumed  the 
characteristics  and  the  attitude  of  a  power,  whose  chief 
function  in  internal  affairs  is  to  preserve  in  harmony 
the  conflicting  principles  of  localism  and  nationalism. 
Historically,  the  former  precedes,  and  nationalism  in  the 
United  States  may  be  called  the  offspring  of  localism, 
for  the  United  States  constitute  a  group  of  peoples, 
each  of  which  is  autonomous  and  inhabits  a  particular 
locality. 

There  is,  likewise,  another  product  of  localism,  and 
that  is  the  representative  democracy,  which  is  indige 
nous  to  this  country.  When  the  colonists  came  here 
they  brought  their  institutions  along  with  them,  and 
they  were  unfettered  in  the  task  of  planting  these  in 
stitutions  and  of  adapting  them  to  the  new  conditions 


THREE  GREAT  EVENTS.  37 

which  invested  them.  Moreover,  in  the  northern 
colonies,  the  colonists  were  of  one  class ;  political  de 
velopment  did  not  have  to  contend  with  distinctions 
of  classes.  Neither  was  there  disparity  of  wealth  suf 
ficient  to  make  itself  felt  adversely  to  the  principle  of 
equality ;  and  the  ruling  colonists  being  of  one  speech 
and  of  the  same  manners,  democracy  may  be  said  to 
have  come  with  them  and  to  have  taken  possession  of 
the  country  unopposed.  The  colonists,  too,  north  and 
south,  were  familiar  with  the  idea  of  representation 
in  government,  and  the  parliamentary  struggle  going 
on  in  England  during  the  infancy  of  the  colonies  was 
their  struggle  as  much  as  it  was  that  of  those  who 
were  waging  it  abroad.  The  township  soon  appeared 
in  the  northern  colonies,  and  by  the  beginning  of  the 
XVIIIth  century  had  attained  the  height  of  its  ef 
fectiveness.  The  township  is  the  neighborhood,  and 
the  neighborhoods  constituted  the  General  Assembly, 
being  represented  there  by  members  of  their  own 
choice.  In  the  south,  where  the  parish  existed,  and 
was  not  the  neighborhood,  the  neighborhood,  neverthe 
less,  ruled,  and  there,  too,  it  constituted  the  legisla 
ture.  This  principle  and  form  of  representation  is  a 
natural  characteristic  of  us  as  a  people,  and,  being 
natural,  its  growth  has  been  constant,  silent,  resistless, 
full. 

Three  great  events  have  influenced  the  course  of 
civilization  in  North  America :  the  Conquest  of  New 
France  by  the  British,  the  achievement  of  Independ 
ence  by  the  Thirteen  Colonies,  and  the  subversion  of 
the  slave  power  in  the  United  States. 

The  Conquest  of  New  France,  by  assuring  British 


38  FEDERAL    UNION. 

supremacy,  secured  to  this  quarter  of  the  globe  pre 
dominance  of  the  notions  and  principles  contained  in 
the  word  "  anglican  ; "  that  is  to  say,  the  assertion  of 
individuality  in  matters  of  conscience,  and  the  asser 
tion  of  individuality  in  matters  of  government.  Both 
of  these  principles  had  been  evolved  from  the  ages 
by  Free  Inquiry,  which,  on  one  side,  took  the  form 
of  religious  liberty,  and,  on  the  other,  of  represent 
ative  government  and  accountability  of  the  governing 
power. 

The  second  event,  the  American  Revolution,  was 
not  a  struggle  between  races,  but  was  one  between 
members  of  a  race-family,  and  was  a  conflict  of  prin 
ciples,  which,  though  not  unknown  to  the  most  of 
Western  Europe,  had  made  for  generations  the  British 
islands  their  peculiar  field  of  strife.  In  England, 
this  struggle  terminated  with  the  Revolution  of  1688, 
when  constitutional  limitations  were  at  last  placed 
upon  authority,  which  had  been  wont  to  hold  itself 
free  from  accountability,  and  when  certain  rights  of 
the  individual  received  constitutional  guaranty.  This 
Revolution,  however,  did  not  extend  to  these  shores, 
and,  in  the  course  of  time,  it  became  necessary  to 
fight  the  battle  over  again  upon  the  soil  of  America. 
The  Revolution  of  1776  accomplished  this,  and,  ad 
vancing  still  further  than  the  Revolution  of  1688, 
transferred  the  sovereignty  from  the  throne  to  the 
people.  From  that  time  to  this  the  Americans  have 
ascribed  to  government  a  different  origin  and  a  dif 
ferent  object  from  those  which  had  been  previously 
accepted.  The  source  of  authority  is  now  said  to 
lie,  not  in  the  governor,  but  in  the  governed,  and  all 
political  power  to  emanate  from  and  return  to  the 


LOGIC   OF  THE  REVOLUTION.  39 

people ; l  every  administrative  force  is  held  to  be  dele 
gated  and  accountable,  and  to  have  for  its  purpose  the 
greatest  good  of  the  greatest  number.  These  doc 
trines  have  been  steadily  approached  in  England  by 
the  slower  and  less  direct  processes  resulting  from  the 
Revolution  of  1688,  but,  in  this  country,  the  opera 
tion  of  our  independence  was  direct  and  speedy,  and 
the  citizen  was  regarded  at  once  as  a  different  being 
from  what  he  ever  had  been  before.  By  this  trans 
formation  of  the  governor  into  an  agent,  and  the 
governed  into  principals,  is  meant  the  transfer  of 
sovereignty  from  the  throne  to  the  people,  and  this 
transfer  was  Revolution.2 

The  third  event,  the  American  Civil  War,  was  a 
logical  sequence  of  the  American  Revolution.  Start 
ing  with  the  assumption  that  sovereignty  lay  in  the 
people,  it  answered  the  inquiry,  What  constitutes  the 
people  ?  by  sweeping  away  the  restrictions  upon  citi 
zenship,  which  had  been  imposed  by  race,  color  and 
previous  condition  of  servitude.  It  converted  on  the 
spot  four  millions  of  slaves  into  as  many  free  men, 

1  "  All  power  henceforth  reverts  to  the  people."     Constitution  of 
New  York,  1777.     "  All  power  is  vested  in  and  consequently  derived 
from  the  people."     Declaration  of  Rights,  Virginia,  1776;  and  see 
state  constitutions  of  revolutionary  epoch. 

2  "  Sovereignty  is  the  right  to  govern  ;  a  nation  or  State-sovereign 
is  the  person  or  persons  in  whom  that  resides.      In  Europe  the  sover 
eignty  is  generally  ascribed  to  the  Prince  ;  here  it  rests  with  the  peo 
ple  ;  there,  the  sovereign  actually  administers  the  Government ;   here, 
never  in  a  single  instance  ;   our  Governors  are  the  agents  of  the  peo 
ple,  and  at  most  stand  in  the  same  relation  to  their  sovereign  in 
which  regents  in  Europe  stand  to  their  sovereigns.     Their  princes 
have  personal  powers,  dignities,  and  preeminences,  our  rulers  have 
none  but  official ;  nor  do  they  partake  in  the  sovereignty  otherwise, 
or  in  any  other  capacity,  than  as  private  citizens."       Chisholm  v. 
Georgia,  2  Dallas,  472 ;  Jay,  C.  J.  (1793). 


40  FEDERAL    UNION. 

and  is  the  latest  constitutional  assertion  of  individual 
ism,  and  the  latest  effort  of  Free  Inquiry  known  to  us 
in  constitutional  history. 

If  we  look  at  the  map  of  North  America  during 
the  later  colonial  epoch,  but  still  previous  to  the  con 
quest  of  New  France,  we  shall  see  that  the  British 
colonies  occupied  a  long  strip  of  seacoast  and  back- 
lying  uplands,  upon  a  line  which  was  unbroken  from 
the  Savannah  to  the  Penobscot.  The  first  thing  to 
strike  the  eye  is,  that  these  colonies  were  contiguous, 
and  that  they  extended  from  a  warm  to  a  cold  climate, 
but  that  all  lay  within  the  temperate  zone.  It  is 
further  to  be  remarked  that,  while  nothing  opposed 
the  westward  march  of  the  British  into  the  valley  of 
the  Mississippi,  no  other  European  race  could  enter  it, 
without  proceeding  by  way  of  the  St.  Lawrence  river, 
which  is  closed  by  ice  for  many  months  in  the  year,  or 
by  taking  a  circuitous  and  irksome  route  southwardly 
through  the  Gulf  of  Mexico.  Thus,  the  natural  ex 
pansion  and  advance  of  the  British  in  America  would 
be  on  shorter  lines  and  through  more  temperate  climes 
than  could  be  enjoyed  by  any  other  people ;  deep  bays 
and  navigable  rivers  facilitated  access  to  the  interior, 
and  the  front  of  seacoast  secured  direct  and  open 
communication  with  Europe.  Such  physical  conditions 
could  not  be  otherwise  than  favorable  to  colonial 
development. 

The  second  striking  characteristic  is  the  predom 
inance  of  the  anglican  element.  There  was  great 
diversity  of  race,  tongue,  and  religion  in  the  middle 
colonies  ;  the  Dutch  were  uppermost  along  the  Hud 
son,  and  the  Huguenot  French  were  conspicuous  in 


COLONIAL    CONFORMITY.  41 

South  Carolina,  but  these  races,  tongues,  and  religions 
were  so  assimilative  with  those  of  the  character-giving 
localities,  New  England  and  Virginia,  that,  even  where 
assimilation  stopped  short,  political  conformity  became 
complete.  The  English  are  not  assimilative,  therefore 
their  exaction  of  the  eradication  of  foreign  institutions, 
or  the  conformity  of  these  with  their  own,  is  inexor 
able  ;  and,  as  time  invariably  rewards  fixity  of  purpose, 
these  communities,  from  one  end  of  the  country  to  the 
other,  at  last  presented  unmistakably  the  appearance 
of  English  colonies.  Looking  at  the  colonies  com 
prised  in  one  view,  the  forms  of  religion  are  those 
peculiar  to  England,  the  universal  language  is  English, 
the  governments  are  such  as  can  spring  from  anglican 
sources  only,  the  physical  appearance  of  the  people, 
their  accent,  manners,  habits,  and  modes  of  living,  all 
are  English.  Though  nearly  every  tongue  of  Western 
Europe  was  spoken  within  their  limits,  so  predomi 
nating  and  absorbing  was  this  single  element,  that  no 
one  could  mistake  these  settlements  for  anything  else 
than  English  colonies,  nor  deny  their  possessing  a  re 
markable  degree  of  political  uniformity.1  It  is  true 
that,  in  respect  to  homogeneity,  they  did  not  equal  the 
French  colonies  in  Canada,  nor  has  account  been  taken 
of  the  African  contingent ;  nevertheless,  the  more 
complete  homogeneity  of  the  French,  to  all  appear 
ance,  had  no  greater  effect  on  the  political  structure 
of  New  France  than  the  approximate  homogeneity 

1  "  Providence  has  been  pleased  to  give  this  one  connected  country 
to  one  united  people ;  a  people  descended  from  the  same  ancestors, 
speaking1  the  same  language,  prof  essing1  the  same  religion,  attached  to 
the  same  principles  of  government,  very  similar  in  their  manners  and 
customs.  .  .  .  This  country  and  this  people  seem  to  have  been  made 
for  each  other."  The  Federalist,  II  (Jay). 


42  FEDERAL    UNION. 

of  the  English  had  on  the  British  colonies.  New 
England  was  as  English  as  Canada  was  French,  and 
the  southern  colonies  were  more  so  than  Mexico  was 
Spanish.  In  Pennsylvania,  upper  New  Jersey,  and 
New  York  only  could  this  characteristic  be  said  to 
be  modified  in  any  great  degree,  and  everywhere  the 
Scotch  and  Irish  were  in  such  harmony  with  the 
English  population  around  them,  and  were  in  such 
constant  process  of  assimilation,  that  the  general  con 
dition  of  homogeneity  remained  intact.  The  whole 
population,  north  and  south,  presented  an  unbroken 
appearance  of  anglican  civilization,  and  the  govern 
ments,  if  not  struck  from  the  same  die,  were  unmis 
takably  products  of  the  same  mint. 

No  great  cities  appear.  There  is  Boston  in  the  far 
north,  New  York  at  the  mouth  of  the  Hudson,  and 
Philadelphia,  the  largest  of  the  three,  on  the  Dela 
ware.1  Flourishing  as  these  are,  they  cannot  be  called 
great ;  south  of  Philadelphia,  there  is  no  city  whatever. 
There  is  no  such  thing  anywhere  as  a  common  capital, 
and,  to  explain  the  lack  of  so  impressive  a  feature,  we 
must  turn  from  the  map  and  betake  ourselves  to  a 
consideration  of  the  political  constitution  of  the  col 
onies. 

1  As  late  as  1790,  when  the  first  census  was  taken,  Philadelphia, 
then  the  largest  and  by  far  the  most  important  city  in  the  Union,  had 
42,520  inhabitants  only ;  New  York  had  33,131 ;  Boston  had  18,038 ; 
and  Baltimore,  13,503  souls.  These  were  the  most  populous  cities,  and 
they  are  taken  in  order  of  numbers.  Between  Baltimore  and  Provi 
dence,  in  this  list,  are  no  other  towns  or  cities,  and  yet  Providence  had 
6,380  people  only. 


CHAPTER  III. 

POLITICAL   SEPARATENESS  OF  THE  BRITISH  COLONIES. 

Causes  of  segregation  —  Lack  of  the  sentiment  of  union  —  What 
was  a  British  colony  ?  —  Political  nature  of  a  colony,  and  the  rela 
tions  of  a  colonist  to  the  crown  and  to  his  colony  —  Political  corpo 
rations  —  Allegiance  —  Social  and  economical  effects  of  separate- 
ness  ;  its  advantages  and  disadvantages  —  Extremities  to  which 
spirit  of  exclusion  reached  —  Colonial  individuality  —  Colonial  de 
velopment  due  to  self-government:  colonies  were  creatures  of 
growth  and  development  —  Separateness  due  to  natural  causes. 

POLITICAL  separateness  is  the  most  striking  charac 
teristic  that  greets  the  observer.  Though  the  colonies 
are  contiguous,  and,  in  New  England,  homogeneous, 
they  are  disunited  :  they  have  no  common  constitution. 
This  condition  of  segregation  is  attributable  to  several 
causes :  1.  They  were  planted  at  different  times,  from 
different  motives,  with  different  objects,  under  different 
circumstances,  and  by  settlers  of  different  characteris 
tics.  2.  Diverse  topographical  and  climatic  conditions 
were  unfavorable  to  consolidation,  or  to  anything  like 
oneness  among  them  all.  3.  Race  instinct,  as  well  as 
reasons  of  convenience  and  prudence,  imposed  limita 
tions  upon  aggregations  which  might  become  unwieldy, 
which  might  jeopardize  the  enjoyment  of  self-govern 
ment,  or  compel  too  great  a  sacrifice  of  individual 
freedom  to  the  exactions  of  the  community.  To  es 
tablish  the  verity  of  this  proposition,  it  needs  the  men 
tion  only  of  the  hundred,  the  parish,  the  township,  the 


44     POLITICAL  SEPARATENESS  OF  COLONIES. 

shire,  and  the  county,  as  illustrating  natural  race  pre 
cincts.  Were  anything  wanting  to  exemplify  other 
motives  for  segregation,  the  migrations  from  Massa 
chusetts  to  Connecticut  and  from  the  Carolinas  to 
Tennessee  would  fully  set  forth  the  fact  that  sense  of 
restraint,  restlessness,  jealousy,  or  fear  of  absorption 
by  encroaching  neighborhoods,  clashing  doctrines,  ad 
verse  legislation,  in  a  word,  the  thousand  personal  in 
fluences  to  which  independent  men  are  subject,  have 
proved  quite  as  effective  in  restricting  social  aggrega 
tion  and  causing  disjunction,  as  have  motives  of  mere 
convenience  and  social  order.  Historical,  social,  po 
litical,  topographical,  and  personal  reasons,  then,  ex 
plain  the  diversity  that  appears  in  the  components  of 
this  assemblage,  as  well  as  the  political  separateness 
of  the  colonies,  and  to  climatic  influences,  difference 
of  soil,  and  qualification  of  homogeneity,  must  be  as 
cribed  the  contrast  of  social  constitution,  whereby 
concentration  distinguishes  population  in  the  north, 
and  dispersion  population  in  the  south. 

4.  To  these  reasons  must  be  added  another,  that  it 
was  not  to  the  interest  of  the  home  government,  or 
central  power,  to  suffer  consolidation  of  separate  com 
munities  upon  their  own  motion,  in  a  distant  land, 
where  the  conditions  were  exceedingly  favorable  to  the 
development  and  expansion  of  power.  These  colonies 
were  regarded  as  dependencies,  but  consolidation  or 
even  union,  by  revealing  strength,  is  more  suggestive 
of  independence  than  it  is  conducive  to  the  mainte 
nance  of  dependence.  While,  then,  united  effort  of 
several  colonies  might  be  tolerated  for  special  and 
temporary  purposes,  such  tolerance  was  purely  an  act 
of  grace  or  necessity  and  not  the  concession  of  a  right. 


UNION  WAS   OF  SLOW  GROWTH.  45 

As  for  consolidation  on  the  motion  of  the  colonies 
themselves,  it  was  out  of  the  question;  the  interest 
of  the  crown  then  manifestly  lay  in  maintaining  the 
disjunction  of  these  dependencies.1 

So  deeply  impressed  upon  colonial  life  was  this  con 
dition  of  separateness,  that,  for  generations  after  the 
occupation  of  the  Atlantic  coast  by  the  British,  no 
effort  was  made  towards  a  permanent  union  of  the 
colonies,  nor  of  any  considerable  part  of  them.2 
There  ,was  cooperation,  but  never  union.  Such  com 
binations  as  occurred  were  provoked  by  considerations 
other  than  those  of  social  development,  and  were  not 
political  and  voluntary,  but  were  physical  and  compul 
sory;  such  as  defence  against  the  aborigines,  attack 
of  the  French,  and  the  like.  These  operations  were 
of  a  temporary  nature,  were  accomplished  under  the 
spur  of  impending  destruction,  and  ceased  as  soon  as 
the  necessity  was  removed.  For  instance,  the  combi 
nation  of  the  New  England  colonies  for  military  pur 
poses  was  dissolved  by  the  reduction  of  the  hostile 
tribes  of  Indians,  and,  at  a  later  day,  the  cooperation 
of  New  York  and  New  England  came  to  an  end  with 
the  retirement  of  the  French  from  the  border.  There 
is  no  instance  of  a  general  union  of  the  colonies  in 
arms  until  the  Revolution,  nor  is  there  an  instance  of 
general  and  spontaneous  union  for  any  purpose  before 
the  Stamp  Act.  Supplies  of  men  and  money  granted 

1  "  The  British  government,  not  choosing  to  permit  the  union  of  the 
colonies  as  proposed  at  Albany,  and  to  trust  that  union  with  their 
defense,  lest  they  should  thereby  grow  too  military  and  feel  their 
own  strength,"  etc.     Works  of  Franklin  (Bigelow),  i,  249 ;  ii,  343  et 
seq.     See,  also,  Life  and  Works  of  John  Adams,  ix,  591,  592. 

2  To  this  the   confederation  of  the  New  England  colonies  in  the 
seventeenth  century  may  be  considered  a  qualified  exception.     It  cer 
tainly  did  not  contemplate  political  union. 


46     POLITICAL  SEPARATENESS  OF  COLONIES. 

upon  requisition  of  the  king  are  not  significant  of 
union,  nor  were  they  spontaneous  and  general ;  spon 
taneous  assuredly  they  were  not,  as  they  were  occa 
sioned  by  the  requisition  of  a  superior,  nor  can  that 
be  called  general  and  united  which  was  not  imposed 
upon  all  the  colonies,  nor  complied  with  by  all,  and 
which,  when  discharged,  was  the  particular  contribu 
tion  of  each  individual  colony.  No  action  of  all  the 
colonies  collectively,  either  of  their  own  motion  or  of 
that  of  the  home  government,  ever  occurred.  The 
sentiment  of  union  was  entirely  wanting  for  four  gen 
erations,1  and  it  is  difficult  to  see  how  such  a  sentiment 
could  develop  under  the  colonial  system ;  for  a  com 
mon  ground  of  their  own  was  needful  to  union,  and 
this  the  colonies  did  not  possess  ;  and  reciprocal  ties 
were  requisite  to  bind  men  together  in  unity,  but  of 
these  there  could  be  none  so  long  as  the  only  ties  per 
missible  were  those  that  attached  dependents  to  their 
superior.  In  fact,  there  was  nothing  political  in  com 
mon  between  a  colonist  of  New  Hampshire  and  a  colo 
nist  of  Georgia ;  the  allegiance  that  they  swore  to  one 
and  the  same  person  made  them  subjects  of  the  same 
lord,  but  nothing  more.  It  was  not  until  subversion 
of  the  liberties  each  colony  possessed  was  threatened 
by  the  spirit  which  prompted  the  Stamp  Act  legisla 
tion,  that  there  was  any  general  and  spontaneous  ac 
tion.  Then,  for  the  first  time,  a  common  sentiment 
pervaded  the  land ;  for  the  first  time  a  common  inter 
est  was  awakened ;  and,  for  the  first  time,  what  was 

1  "  It  is  a  significant  and  curious  fact,"  says  Bigelow,  speaking-  of 
the  Albany  Conference  of  1754,  "  that,  with  the  exception  of  those 
from  Massachusetts,  none  of  the  delegates  had  any  instructions  to 
discuss  the  question  of  a  union  of  the  colonies  for  mutual  defence,  or 
for  any  other  purpose."  Works  of  Franklin,  ii,  344. 


WHAT   WAS  A   BRITISH  COLONY?  47 

styled  a  Congress  of  the  Colonies  met  together ; 
though,  even  then,  four  of  the  thirteen  colonies  re 
mained  at  home.  This  was  the  first  indication  that 
such  a  thing  as  a  general  sentiment  of  union  existed 
in  British  America. 

This  characteristic  of  separateness  in  the  colonies 
was  such  a  radical  feature  of  their  structure,  and  has 
had  such  a  far-reaching  and  lasting  effect  upon  the 
states  into  which  they  have  since  developed,  and  upon 
the  Union  which  was  formed  from  them,  that  close 
study  of  it,  and  thorough  appreciation  of  its  force  as 
a  condition  precedent  to  union,  and  as  a  political  ele 
ment  in  our  constitution,  is  essential  to  a  correct  un 
derstanding  of  the  history  of  the  United  States.  We 
have  seen  already,  that,  apart  from  known  physical 
and  moral  causes,  this  trait  had  political  reasons  for 
its  being,  and  was  influenced  by  the  relations  which 
existed  between  the  crown  and  the  colonies.  It  may 
be  well,  therefore,  to  inquire  what  a  colony,  in  the 
political  sense,  was  ;  what  its  relations  to  the  crown 
were ;  and  what  the  relations  of  the  colonist  to  the 
crown  and  to  his  colony. 

A  British  colony  was  a  dominion  beyond  seas,  of 
which  the  sovereign  of  Great  Britain  was  lord.  This 
dominion  was  integral ;  that  is,  it  was  a  corporation 
comprising  in  itself  the  powers  and  performing  the 
functions  of  a  body  politic,  independently  of  the 
world,  except  in  the  single  respect,  that  it  was  bound 
unto  its  lord  ;  he  was  its  head,  and  was  represented  by 
a  Governor.1  This  dominion  was  self-governed ;  it 

1  In  the  charter  colonies  at  the  outset  of  the  Revolution,  viz., 
Massachusetts,  Connecticut,  and  Rhode  Island,  the  Governors  and 
assemblies  were  elected  by  the  people. 


48     POLITICAL  SEPARATENESS  OF  COLONIES. 

had  a  parliament,  whose  statutes  were  subject  to  re 
vision  by  the  king  only,  and,  when  these  were  not  dis 
allowed,  they  became  the  law  of  the  land.1  Thus  it 
was  autonomous,  it  was  independent  of  the  other  do 
minions,  and  it  was  subject  to  no  other  control  than 
its  lord's.  The  frame  of  a  colony's  political  structure, 
it  is  seen,  differs  in  no  respect  from  that  of  England 
itself,  where  the  three  most  prominent  features  are, 
likewise,  king,  parliament,  and  subjects.  If,  for  illus 
tration,  we  take  any  one  of  the  American  colonies, 
we  behold,  first,  the  king  in  the  person  of  the  Gov 
ernor  ;  next,  the  law-making  power  in  the  shape  of  the 
provincial  legislature;  and,  finally,  the  body  of  the 
people,  who  are  subjects.  These  last  were  freemen, 
and  they  were  so  by  birthright  of  British  subjects ; 
their  liberties,  which  were  numerous  and  great,  were 
theirs  by  prescription,  or  by  royal  grant  of  franchises. 
The  Governor  was  a  symbol ;  the  only  military  power 
was  the  militia,  which  the  colonists  themselves  com 
posed  ;  the  judiciary  was  their  own,  and  they  paid  no 
taxes  which  were  not  laid  by  themselves.  Such  was 
the  political  constitution  of  every  colony  whose  peo 
ple  were  British,  either  by  birth  or  descent.  King, 
legislature,  free  people ;  these  were  the  invariable  and 
unmistakable  components  of  anglican  constitution  the 
world  over.2 

1  In  Maryland,  Connecticut,  and  Rhode  Island,  the  laws  were  not 
required  to  be  sent  to  the  king  for  his  approval ;  it  was  otherwise 
with  the  rest  of  the  colonies.      Chalm.  Annals,  203,  295 ;   1  Doug. 
Summ.  207,208;   Story,  Constitution,  Book  I,  ch.  xvii,  §  171.     The 
Maryland  charter  was  the  first  by  which  the  Proprietor  and  the  free 
men  were  authorized  to  legislate  free  from  the  negative  of  the  crown. 

2  The  governments  of  Rhode  Island  and  Connecticut  were  so  re 
publican  in  constitution,  that  when  the  colonies  became  states  they 
retained  their  charters  as  the  organic  law.     A  number  of  the  states, 


BOARD   OF  TRADE.  49 

To  the  assertion  that  no  power  intervened  between 
the  lord  and  his  dominions,  there  are  two  seeming  con 
tradictions,  the  Board  of  Lords  of  Trade  and  Planta 
tions,  and  the  claim  of  right  in  the  British  Parliament, 
or,  what  amounts  to  the  same  thing,  the  British  people, 
to  legislate  for  the  colonies.  As  to  the  first,  it  may 
be  said  that,  so  long  as  the  colonies  were  small  and 
the  magnitude  of  their  business  was  not  too  great,  the 
administration  of  colonial  affairs  was  conducted  solely 
by  the  king  in  Privy  Council ;  but  that,  as  they  waxed 
in  size  and  numbers,  it  was  deemed  necessary  for  the 
facilitation  of  business  to  commit  a  great  part  of 
purely  administrative  matters,  and  particularly  those 
relating  to  trade  and  commerce,  to  a  body  created  for 
the  purpose,  and  styled  the  Board  of  Lords  of  Trade 
and  Plantations.  This  body  did  not  escape  the  de 
traction  that  invariably  opposes  everything  novel,  nor 
could  it  avoid  the  insinuations  that  attributed  its  crea 
tion  to  motives  not  altogether  in  the  interest  of  remote 
and  unfriended  communities.  Nevertheless,  as  the 
ground  assigned  for  its  formation  was  a  reasonable 
one,  this  board  was  accepted,  especially  as  the  right 
of  appeal  to  the  king  in  council  was  left  unimpaired, 
and,  though  narrowly  watched,  it  was  regarded  by  the 
colonists  as  a  mere  instrument  of  the  sovereign  for 
the  administration  of  colonial  affairs,  and,  hence,  was 
no  intervening  third  power. 

The  act  of  Navigation,  which  regulated  colonial 
commerce  and  restricted  trade  with  foreign  powers, 
and  the  acts  of  Trade,  which,  so  far  as  colonial  manu- 

also,  in  adopting-  new  constitutions,  made  their  ancient  charters  the 
foundation  of  them,  and,  indeed,  may  be  said  to  have  merely  adapted 
the  charters  to  the  new  conditions. 


50     POLITICAL  SEPARATENESS  OF  COLONIES. 

factures  were  concerned,  were  chiefly  of  a  prohibitory 
nature,  were  enactments  of  the  British  Parliament ; 
distinctively  a  third  party  and  an  intervening  one.  It 
has  been  a  matter  of  surprise,  that  the  colonies  re 
mained  submissive  to  this  legislation.  Docility,  how 
ever,  was  not  in  every  case  a  matter  of  course ;  for 
Massachusetts,  in  order  to  assert  her  independence  as 
an  autonomy,  made  the  Navigation  act  her  own,  by 
enacting  it  in  her  legislature,  and  Virginia,  declaring 
that,  under  her  charter,  she  was  not  bound  by  it, 
acknowledged  it  only  as  a  matter  of  bargain  and  com 
pact  with  the  Commonwealth.1  Nevertheless,  it  was 
accepted  generally,  though  reluctantly,  and  this  acqui 
escence  in  what,  at  first  glance,  seems  interfering  and 
meddlesome,  is  readily  accounted  for,  when  it  is  con 
sidered,  that,  to  the  one  who  owned  the  navy  must  be 
committed  the  task  of  maintaining  open  communica 
tion  between  the  different  members  of  the  anglican 
family,  and  of  affording  them  protection  on  the  high 
seas,  and  that  it  did  this  at  its  own  cost  and  charges. 
Acquiescence,  then,  in  this  legislation,  whereby  great 
profits  were  diverted  to  the  commercial  classes  of  Eng 
land,  was  regarded  by  the  colonists  in  the  light  of  com 
pensation  for  benefits  rendered ;  it  was  a  matter  of 
compact.  It  is  true,  moreover,  that  the  British  Parlia 
ment,  from  time  to  time,  asserted  legislative  authority 
over  the  colonies,  and  that,  in  this  persistent  conduct, 
it  finally  had  the  passive,  if  not  the  active  sympathy 
of  the  king,  and  it  is  further  true  that  a  notion  existed, 
even  among  the  colonists  themselves,  that  the  parent 
parliament  must  be  something  greater  than  their  own 
puny  legislatures;  a  central  sun,  around  which  the 

1  Life  and  Works  of  John  Adams,  iv,  48. 


CLAIMS   OF  PARLIAMENT.  51 

lesser  orbs  revolved.  But  this  notion,  more  easily 
accounted  for  by  sentimental  than  by  political  reasons, 
was  eventually  rejected  by  those  who  entertained  it, 
and  as  they  at  last  took  up  arms  against  what  they 
styled  the  usurpations  and  encroachments  of  this  body, 
it  can  be  asserted,  that,  at  least,  one  of  the  parties  to 
the  question  refused  to  recognize  the  intervention  of 
this  power  between  the  dominions  and  their  sovereign. 
The  claim  of  the  British  Parliament  to  legislate  for 
the  colonies,  though  asserted  to  this  day,1  thus  finds 
no  support  worthy  of  consideration  in  the  history  of 
these  dominions. 

The  fact,  then,  remains,  that  a  colony  was  a  do 
minion  ;  that  its  people  were  subjects ;  that  these  sub 
jects  had  for  their  lord  and  sovereign  the  person  who 
was  likewise  sovereign  of  Great  Britain  ;  and  that  they 

1  "  The  legislative  authority  of  Parliament  extends  over  the  United 
Kingdom,  and  all  its  colonies  and  foreign  possessions,  and  there  are 
no  other  limits  to  its  power  of  making  laws  for  the  whole  empire, 
than  those  which  are  incident  to  all  sovereign  authority  —  the  willing 
ness  of  the  people  to  obey,  or  their  power  to  resist.  Unlike  the  legis 
latures  of  many  other  countries,  it  is  bound  by  no  fundamental  char 
ter  or  constitution;  but  has  itself  the  sole  constitutional  right  of 
establishing  and  altering  the  laws  and  government  of  the  empire. 
.  .  .  The  power  of  imposing  taxes  upon  colonies  for  the  support  of 
the  parent  state,  though  not  now  enforced,  was  exercised  by  Parlia 
ment  in  the  case  of  the  provinces  of  North  America ;  and,  as  is  but 
too  well  known,  was  the  immediate  occasion  of  the  severance  of  that 
great  country  from  our  own.  But  whatever  may  be  urged  against 
colonial  taxation  on  grounds  of  justice  or  expediency,  the  legal  right 
of  Parliament  to  impose  taxes  upon  all  persons  within  the  British 
dominions  is  unquestionable."  May's  Laws,  etc.,  of  Parliament,  36 
et  seq.  But  see  Lord  Glenelg :  "  Parliamentary  legislation  on  any  sub 
ject  of  exclusively  internal  concern  to  any  British  colony  possessing 
a  representative  assembly,  is,  as  a  general  rule,  unconstitutional.  It 
is  a  right,  of  which  the  exercise  is  reserved  for  extreme  cases,  in 
which  necessity  at  once  creates  and  justifies  the  exception."  Parl. 
Pap.  (118),  7. 


52     POLITICAL  SEPARATENESS  OF  COLONIES. 

were  entitled  to  make  their  own  laws  free  from  the  in 
tervention  of  any  other  people.  That  this  view  of 
their  political  structure  was  general  throughout  the 
colonies  became  apparent  during  the  discussion  that 
followed  the  Stamp  Act,  and  it  was  to  preserve  the 
integrity  of  this  structure,  that  the  colonists  finally 
embarked  upon  what  proved  to  be  revolution.  Had 
not  such  been  really  the  political  fabric,  the  rising  of 
the  colonies  could  not  have  been  justified,  and  it  is  to 
be  presumed,  therefore,  that  it  would  not  have  oc 
curred.  That  it  was  the  true  one,  is  sustained  by  the 
facts,  that  the  original  grant  by  which  every  colony 
was  established  issued  from  the  king  as  sovereign 
lord  of  the  territory  occupied;  that  he  granted  the 
lands  as  of  himself  alone ; l  and  that  none  of  them,  in 
the  course  of  its  existence,  was  ever  annexed  to  a 
realm.  Thus  the  colonies  were  derived  immediately 
from  the  king,  and  depended  immediately  upon  him, 
and,  not  being  annexed  to  any  realm,  or  conjoined 
with  any  other  dominion,  were  separate  dominions  and 
independent  of  each  other.  The  course  of  royal  ad 
ministration  confirms  this  view,  for  colonial  business 
was  always  transacted  by  the  sovereign  and  his  assist 
ants  directly  with  each  colony,  and  never  with  the  colo 
nies  collectively,  and  thus  it  is  clear  that  both  of  the 
only  parties  in  interest  regarded  each  colony  as  a  dis 
tinct  and  separate  body,  and  free  from  the  interven 
tion  of  any  other  power. 

Allegiance  had  no  effect  to  augment,  diminish,  or 
qualify  the  characteristic  of  separateness.     It  certainly 

"Every  acre  of  land  in  this  country  was  then  held  mediately 
or  immediately  by  grants  from  the  crown."  Chisholm  v.  Georgia,  2 
Dallas,  470. 


ALLEGIANCE  NO  POLITICAL  BOND.         53 

did  not  lessen  the  disjunction;  for,  as  a  matter  of 
fact,  as  the  sentiment  of  union  gained  strength,  loyalty 
waned.  Allegiance  had  no  lateral  power  of  conjunc 
tion  ;  it  did  not  bind  subject  to  subject,  but  subject  to 
lord ;  it  was  individual  and  personal,  not  collective 
nor  sworn  to  an  abstract,  intangible  object  like  the 
commonwealth.  It  was  sworn,  not  to  the  crown, 
which  represents  the  political  capacity  of  the  king,  but 
to  the  king's  person,  or  to  the  king  in  his  natural 
capacity.  It  was  due  from  the  subject  wherever  he 
might  be,  and  it  was  due  to  the  sovereign  wherever  he 
might  be,  though  he  were  a  prisoner  in  the  midst  of 
an  enemy's  territory,  and  restrained  from  acting  in  his 
political  capacity.  It  was,  therefore,  a  matter  exist 
ing  solely  between  lord  and  man,  and  what  binding  or 
uniting  effect  it  had  between  subjects  was  social  and 
moral,  not  political. 

These  relations,  then,  which  existed  between  the 
king  and  his  dominions,  endued,  as  they  were,  with 
every  principle  of  Anglican  constitution,  had  the  effect 
of  making  each  one  self-contained  and  exclusive  of 
the  rest  of  the  world.  They  were,  in  fact,  separate 
and  distinct  bodies  in  separate  and  distinct  territories. 
Each  held  the  title  to  its  territory  by  a  grant  separate 
and  distinct  from  its  neighbors,  and,  as  allegiance  was 
an  act  of  the  person  and  related  only  to  the  natural 
capacity  of  the  king,  there  coidd  be  little  political  in 
common  between  them.  The  colony  of  Massachusetts 
was  as  distinct  from  the  colony  of  Pennsylvania,  as  it 
was  from  the  colony  of  Jamaica.  As  far  as  their  re 
lations  to  the  king  were  concerned,  the  people  of  each 
owed  individual  allegiance ;  and  the  king,  in  return, 
afforded  protection  and  tranquil  enjoyment  of  granted 


54     POLITICAL  SEPARATENESS  OF  COLONIES. 

franchises,  without  the  slightest  reference  to  any  other 
colony.  Had  the  people  of  Virginia  owed  allegiance 
to  the  king  of  France,  and  those  of  Maryland  alle 
giance  to  the  king  of  Spain,  they  could  not  have  been 
more  distinct  and  separate  bodies  politic,  in  relation 
to  each  other,  than  they  were  when  both  bore  alle 
giance  to  the  king  of  Great  Britain.  A  British  sub 
ject,  indeed,  residing  in  one  of  these  colonies,  would 
have  certain  rights  within  the  territory  of  the  other, 
had  he  chosen  to  transfer  his  residence  thither  and 
exercise  them,  and  some  did  he  not  so  choose :  as  the 
right  to  own  property  there,  to  inherit  lands,  and  the 
like.  But  this  he  had  from  no  unity  of  the  colonies, 
express  or  implied,  but  merely  from  the  force  of  the 
allegiance  which  constituted  him  a  subject ;  a  fact 
which  gave  him  these  rights  in  whatever  part  of  the 
British  possessions  they  might  fall  —  as  well  in  the 
Bermudas  or  Bengal,  as  in  New  York  or  Barbadoes. 
In  a  word,  they  were  separate  and  distinct  autonomies, 
of  which  the  citizens  of  one,  from  the  fact  of  bearing 
allegiance  to  the  same  person,  were  not  aliens  to  the 
citizens  of  the  others.1 

It  follows  from  this,  that  the  citizens  of  each  colony 
formed  a  political  corporation 2  created  by  the  king,  to 
whom  they  owed  particular  and  sole  allegiance  ;  that 
they  were  bound  by  no  laws  which  they  did  not  make, 
and  were  bound  only  by  those  which  they  made  with 
the  assent  of  this  king  when  this  assent  was  specifi 
cally  required  ;  that  they  possessed  common  political 
interests,  were  subject  to  common  duties  and  obliga- 

1  Development  of  Constitutional  Liberty,  36,  37. 

2  "  All  states  whatever  are  corporations  or  bodies  politic."     Chis- 
holm  v.  Georgia,  2  Dallas,  468. 


SOCIAL   EFFECTS   OF  SEPARATENESS.       55 

tions,  and  were  entitled  to  common  political  benefits  ; 
that  their  government  was  administered  for  the  pur 
poses  of  each  whole,  but  for  no  others  ;  and  that,  con 
sequently,  the  colonists  of  each  colony  constituted  a 
people.  It  follows  further,  that  none  of  these  colonies 
was  bound  nor  was  affected  in  any  way  by  the  laws  of 
another  ;  that  no  one  possessed  political  interests  in 
nor  was  subject  to  the  political  duties  and  obligations 
of  another,  nor  was  entitled  to  share  in  another's  po 
litical  benefits ;  that  there  was  no  government  whose 
administration  was  for  the  purposes  of  all  the  colonies 
taken  collectively,  and  that,  therefore,  there  was  no 
one  people  throughout  the  colonies,  but  that  there 
were  as  many  separate  and  distinct  peoples  as  there 
were  colonies,  and  that  these  peoples  were  autono 
mous.  Thus  it  was,  that  they  had  no  common  capital, 
and  no  common  army,  judiciary,  treasury,  or  governor, 
and  thus  it  was  that  they  had  no  common  ground 
whereon  to  meet,  nor  mode  of  common  action. 

This  political  separateness  had  its  effect  .likewise, 
economically  and  socially.  No  common  ground  af 
forded  room  for  honorable  rivalry  or  for  strife  of  in 
terests ;  nor  could  there  be  commercial  competition 
between  the  two  great  producing  sections,  since  the  pe 
culiar  productions  of  each,  though  flowing  to  the  same 
marts,  met  with  different  demand.  The  North  pro 
duced  roots  and  cereals,  the  South  plants  and  vines. 
Philadelphia,  from  its  position  and  extent  of  trade, 
was  the  largest  and  most  influential  city,  yet  it  cannot 
be  said,  that  there  was  any  one  great  commercial  or 
social  centre  ;  the  commercial  classes  of  England  con 
trolled  colonial  trade,  and  London  and  its  court  set 


56     POLITICAL  SEPARATENESS  OF  COLONIES. 

the  fashion  to  colonial  society.  The  difficulty  of  inter 
communication  strengthened  the  tendency  to  adhere  to 
the  standard  of  manners  maintained  in  the  old  coun 
try,  and  to  reject  any  which  might  be  set  up  in  the 
provinces ;  for,  similarity  of  manners  depends  upon 
intercourse,  and  this  upon  facility  of  locomotion,  an 
advantage  unknown  to  the  colonists.  The  perils  of 
coast  navigation  being  peculiarly  great,  communication 
was  mainly  confined  to  land  travel,  which,  from  the 
length  and  badness  of  roads,  made  a  voyage  to  London 
and  back  a  much  less  serious  affair  than  a  journey 
from  Charleston  to  Philadelphia.  Thus,  the  inter 
course  which  most  directly  affects  the  manners  of  the 
upper  classes,  (and  in  those  times  it  was  the  wealthy 
or  the  trading  classes  only  that  travelled,)  was  restric 
ted  to  almost  nothing,  while  on  the  other  hand,  it  main 
tained  with  great  persistence  its  accustomed  course  to 
the  capital  of  Great  Britain.  There  was  too  little  vari 
ety  of  social  features  to  tempt  the  colonist  from  his 
home,  and,  when  a  grand  tour  was  resolved  upon,  he 
was  not  long  in  choosing  between  the  splendors  of  Lon 
don  and  those  of  Philadelphia.  It  is  easy  to  see  from 
this,  why  trans- Atlantic  travel  remained  the  mode  ;  its 
perils  were  less  and  its  attractions  greater.  The  known 
and  fixed  standard  of  social  life  abroad  was  ready  at 
hand,  and,  first  in  possession,  kept  the  field  against 
any  innovation  at  home.  The  rusticity  of  colonial  life 
could  not  prevail  against  the  polish  and  elegance  of  the 
court ;  the  contrast  presented  was  too  unfavorable  to 
the  former,  and  distaste,  not  to  say  contempt,  of  any 
thing  that  savored  of  the  provincial,  was  engendered. 
Separate  by  political  constitution,  with  their  external 
relations  centring  in  a  distant  prince,  with  their  man- 


COLONIAL   INDIFFERENCE.  57 

ners  regulated  by  those  of  a  foreign  court,  and  with 
their  trade  controlled  by  trans- Atlantic  marts,  it  is  no 
wonder  that  they  looked  to  other  peoples  than  their 
own  for  their  standard  of  social  life.  Here  the  affairs 
of  one  were  not  the  affairs  of  another,  intercourse  be 
tween  remote  colonies  was  well-nigh  impossible,  and  no 
interest  existed  of  binding  force  sufficient  to  overcome 
the  feeling  of  exclusion  and  indifference ;  and  thus  the 
political  and  commercial  separateness  of  the  colonies 
extended  to  their  social  life  and  manners.1 

This  state  of  feeling  had  its  disadvantages  as  well 
as  advantages,  for  it  is  evident  that  the  tendency 
of  exclusion  is  to  place  society  upon  a  narrow  and 
shallow  basis ;  its  action  is  selfish.  Men  cannot  shut 
themselves  up  from  extraneous  influences,  and  be 
come  broader  and  more  humane;  on  the  contrary, 
they  become  narrow,  and  this  effect  was  manifested  in 
more  than  one  passage  of  our  colonial  history.  It  is 
not  the  lack  of  cohesion  that  affects  us  unfavorably 
in  surveying  the  annals  of  the  colonies,  for  cohesion 
is  not  expected  in  a  system  characterized  by  disjunc 
tion,  and,  moreover,  in  itself  it  does  not  partake  of  the 
nature  of  a  virtue :  it  is  the  apparent  indifference  for 
each  other  that  grates  upon  our  feelings,  and  the  ab 
sence  of  common  interest  and  sympathy.  This  spirit 
of  exclusion  kept  the  colonist,  for  generations,  from 
being  more  than  a  mere  provincial,  and  it  was  not 
until  the  upheaval  of  the  Stamp  Act  that  he  began  to 
style  himself  an  American. 

Though  such  was  a  disadvantage  of  an   exclusive 

1  In  1760  Franklin  maintained  that  union  of  the  colonies  against 
England  would  be  impossible,  since  all  loved  the  mother  country  more 
than  they  loved  each  other.  Works  (Sparks),  iv,  42. 


58    POLITICAL  SEPARATENESS  OF  COLONIES. 

and  restrictive  system,  it  cannot  be  denied,  that  sepa- 
rateness  had  its  advantages ;  it  was,  for  instance, 
highly  favorable  to  the  development  of  local  self- 
government.  The  race  is  an  energetic  one,  and  is 
distinguished  by  its  capacity  for  making  the  most  of 
the  means  in  hand.  A  system,  therefore,  which,  by 
making  no  account  of  neighborly  sympathy  and  good 
will,  might  have  discouraged  a  people  of  sociability  but 
of  feeble  temper,  lent  force  to  the  development  of  this 
people.  For,  as  remoteness  of  the  sovereign,  and  per 
sistence  in  a  laissez-faire  policy  of  administration,  af 
forded  no  diversion  from  the  home  governments,  every 
energy  and  every  force  of  the  colonist  was  given  to  the 
administration  of  his  own  colony,  and  these  energies 
and  forces  acquired  all  the  more  vigor  from  the  very 
fact  that  they  were  pent  up  and  had  but  a  single  out 
let.  The  stage  of  culture  had  not  yet  been  reached 
when  this  energy  takes  the  form  of  literature,  so  that 
destitute  of  this  means  of  expression,  what  had  the 
colonist  to  do,  but  to  talk  law,  philosophy,  and  politics,1 
and  to  administer  government  directly  or  indirectly  ? 
That  he  did  this  to  good  purpose,  is  shown  by  the 
burst  of  admiration  with  which  Chatham  directed  the 
gaze  of  Parliament  to  the  little  senates  in  these  woods, 
for  the  colonist  attained  such  skill  in  administration  as 
to  remain  to  this  day  the  highest  example  we  have 
ever  produced  of  mastery  of  the  art  of  government.2 
No  being  was  more  firmly  attached  to  the  soil.  He 

1  The  autobiographies  and  diaries  of  the  leading  men  of  the  Revo 
lution  afford  many  instances  of  the  habitual  discussion  of  these  subjects, 
especially  by  young1  lawyers.     They  would  meet  regularly  for  this 
purpose.   Sir  Henry  S.  Maine  notices  how  prevailing  was  the  influence 
of  Montesquieu. 

2  See/MW*,pp.  129,131-133. 


JEALOUSY  OF  INTERFERENCE.  59 

loved  it  as  the  abiding-place  of  everything  dear  to  him : 
out  of  its  dust  had  he  been  made  and  to  it  he  expected 
to  return.1  His  province  was  to  him  what  Laconia 
was  to  the  Spartan  ;  his  cradle,  his  home,  his  citadel, 
his  country,  his  grave.  He  was  eager  to  develop  its 
resources,  to  maintain  its  dignity,  to  assert  its  rights 
or  to  resent  its  wrongs,  and  he  was  exceedingly  jealous 
of  anything  that  affected  unfavorably  its  individuality. 
He  stayed  not  on  the  threshold,  but  met  the  offender 
more  than  half  way,  and,  next  to  actual  invasion  of  its 
rights,  he  feared  committing  himself  to  any  position 
that  might  compromise  them.  Hence  this  jealousy  of 
interference,  and  this  sensitiveness  to  anything  like 
intermeddling,  which  constantly  betrays  itself  in  our 
colonial  history,  and  hence,  too,  one  main  reason  for 
the  lack  of  a  sentiment  of  union,  and  for  persistent 
exclusiveness. 

To  such  an  extent  was  the  spirit  of  exclusion  car 
ried,  that  one  is  startled  at  meeting  it  under  circum 
stances  and  at  times  in  which,  to  modern  notions,  its 
appearance  is  incomprehensible.  Thus,  the  pages  of 
our  annals  teem  with  instances  of  what  the  historians 
style  apathy,  when  neighboring  colonies  are  in  the 
presence  of  great  danger.  Mere  apathy,  however,  is 
not  sufficient  to  explain  insensibility  to  danger,  which, 
to-day  their  neighbor's,  to-morrow  may  be  their  own. 
It  has  an  explanation,  and  this,  too,  is  to  be  found  in 
the  separateness  of  the  colonies.  For,  being  separate, 
what  concerned  one  colony  did  not  concern  the  rest, 
and,  therefore,  from  the  standpoint  of  the  colonist,  he 
might  with  equal  justice  be  called  upon  to  assist  an 

1  Observe,  inter  alia,  the  pathetic  and  oft-repeated  utterances  of 
Hutchinson.  See  Diary  and  Letters,  sparsim. 


60     POLITICAL  SEPARATENESS  OF  COLONIES. 

East  Indian  colony  from  an  attack  of  Sikhs,  as  a 
neighboring  colony  from  an  attack  of  Algonquins.  So 
long  as  the  security  of  his  own  province  was  not  at 
stake,  the  affair  was  no  concern  of  his  ;  it  was  the 
concern  only  of  the  colony  whose  border  had  been 
assailed.1  It  was  not  until  the  impending  danger 
involved  his  x>wn  security,  that  he  dared  to  take  a  step 
upon  his  neighbor's  territory,  for  unless  called  upon 
for  aid,  he  would  have  to  account  to  the  colony  upon 
whose  territory  he  had  trespassed,  and,  in  any  event, 
he  would  have  to  justify  his  infraction  of  the  known 
and  determined  policy  of  his  sovereign.  Gratuitous 
assistance  might,  in  one  case,  be  construed  as  inter 
meddling,  and,  in  the  other,  a  violation  of  a  settled 
principle  of  government.  Hence,  it  was  a  matter  not 
of  feeling,  but  of  politics.  That  this  was  the  view 
generally  taken,  is  shown  by  the  fact,  that  no  apathy 
whatever  appears  in  the  case  of  colonies  who  made 
ready  to  respond  to  a  call  for  aid,  or  who  united 
promptly  when  the  danger  of  one  border  affected  the 
security  of  the  others :  but  it  took  the  impulse  of  self- 
preservation  to  justify  and  effect  such  union,  and,  as 
has  been  already  observed,  the  danger  over,  the  con 
stituents  resolved  forthwith  into  their  normal  condition 
of  separateness.  It  was  not,  then,  lack  of  public 
spirit,  nor  jealousy  alone,  nor  insensibility  to  distress, 
nor  apathy  itself,  which  made  the  colonists  slow  to 
move  at  the  spectacle  of  a  neighbor's  distress,  but  it 
was  the  inefficacy  of  the  constitution  of  the  colonial 
system,  and  of  a  governmental  policy  loath  to  exonerate 

1  See  an  interesting1  note,  entitled  "  Military  Inefficiency  of  the  Brit 
ish  Colonies,"  in  Parkman's  Count  Frontenac  and  New  France,  408. 
Also  Works  of  Franklin  (Bigelow),  ii,  351,  352. 


INDIVIDUALITY   OF  THE   COLONIES.        61 

infraction  of  its  rules  :  this  withheld  the  means  of  ef 
fecting  union,  that  inspired  the  fear  of  setting  prece 
dents  which  might  lead  to  political  complications  there 
after.  Thus,  when,  even  on  motion  of  the  sovereign  and 
not  of  the  colonies,  colonial  forces  were  concentrated 
at  Albany  to  resist  or  attack  the  French,  the  troops 
were  drawn  only  from  New  York  and  New  England, 
the  parts  immediately  affected  ;  and  when  Braddock's 
column  advanced  to  the  subjection  of  the  enemy  which 
threatened  the  borders  of  Pennsylvania  and  Virginia, 
the  contingent  of  Provincials  was  composed  of  Penn- 
sylvanians  and  Virginians  only. 

It  is  evident,  from  what  has  been  said,  that  the  in 
dividuality  of  a  colony  had  strong  retroactive  support 
from  the  condition  of  separateness.  This  attribute 
was  strengthened  by  the  moral  effect  lent  by  the  di 
versity  of  character  existing  between  the  colonies.  If 
their  virtues  were  alike,  their  prejudices  were  dissimi 
lar  and  conflicting,  and  each  one  had  those  peculiar  to 
itself.  The  aristocratic  colonies  regarded  the  demo 
cracies  as  inferior  communities,  and  the  democratic 
colonies  congratulated  themselves  upon  being  free 
from  the  old-world  delusions  of  the  aristocracies. 
Where  the  Church  of  England  was  uppermost,  it 
scorned  the  theocracies  as  oligarchies,  and  these,  on 
their  part,  thanked  God  that  they  were  not  as  the 
others  were.  The  regions  where  society  was  concen 
trated,  looked  upon  those  in  which  it  was  dispersed  as 
examples  of  a  false  conception  of  social  constitution ; 
an  opinion  which  was  returned  in  kind.  Degrees  of 
latitude  were  equivalent  to  degrees  of  variance  in  char 
acter,  and  each  colony,  satisfied  with  itself,  sought  to 


62     POLITICAL  SEPARATENESS  OF  COLONIES. 

cultivate  its  own  notions  and  to  exclude  those  of  its 
neighbors.1 

Such  was  the  structural  condition  of  the  colonies 
during  the  colonial  epoch.  It  was  emphatically  a  con 
dition  of  separateness,  and  one  which  was  favored  by 
the  policy  of  disjunction  maintained  by  the  sovereign. 
One  cannot  but  feel,  that  a  condition  existing  so  long 
without  any  significant  disturbance,  must  have  had  its 
foundation  in  the  nature  itself  of  the  people.  No  arti 
ficial  structure,  and  no  mere  administrative  policy,  can 
account  for  the  tenacity  with  which  the  colonies  main 
tained  their  individuality.  Natural  causes  alone  ac 
count  for  a  characteristic,  which,  in  its  political  rela 
tions,  is  to  be  described  as  an  absorbing  love  of  local 
self-government.  Those  who  see  in  the  separateness 
of  the  colonies  the  effects  of  a  mere  divide  et  impera 

1  In  treating  of  the  separateness  of  the  colonies,  their  points  of 
dissimilarity  have  been  indirectly  revealed.  It  may  be  well  to  give 
the  points  in  which  all  the  colonies  were  alike,  as  they  are  set  forth  by 
one  so  accomplished  in  political  analysis  as  Bluntschli :  — 

"  (a)  English  law,  without  either  landlords  or  feudal  tenure :  free 
property  in  the  soil  was  the  basis  of  the  economic  system.  (6)  Essen 
tial  equality  of  position  and  rights,  and  the  absence  of  any  aristo 
cracy  like  that  which  still  held  power  in  England.  This  equality  was, 
however,  broken  by  marked  differences  of  race  [such  as  those  of  the 
Indians  and  the  negroes].  .  .  .  (c)  The  constant  habit  of  self-reliance 
in  contrast  to  State-aid.  .  .  .  (d)  The  general  education  of  the  people 
by  means  of  national  schools.  .  .  .  (e)  A  free  constitution  of  the 
villages,  and  independent  administration  of  the  colonies.  (/)  The 
small  number  of  officials.  .  .  .  (g)  Hardly  any  standing  troops,  their 
place  being  taken  by  the  militia,  (h)  The  existence  of  a  House  of 
Representatives,  elected  in  each  colony  by  the  free  men,  which  acted 
with  the  Senate  in  making  laws,  but  by  itself  granted  taxes  and  con 
trolled  the  administration,  (i)  The  custom  of  short  tenure  of  offices, 
so  as  to  provide  for  frequent  changes,  (k)  Lastly,  the  gradual  devel 
opment  of  a  free  press  and  freedom  of  combination."  Allgemeine 
Statslehre,  or  The  Theory  of  the  State,  b.  vi,  chap,  xxii  (Engl.  ed., 
1885). 


LAISSEZ-FAIRE.  63 

policy,  attribute  to  colonial  docility  more  than  belongs 
to  it ;  and  much  more  than  the  other  members  of  the 
anglican  family  have  shown,  even  when  under  con 
ditions  more  favorable  to  its  exercise  than  those  which 
surrounded  the  American  colonies.  And  those  who 
attribute  to  provincial  self-importance  a  characteristic 
so  general,  and  which  appears  so  natural  on  the  face 
of  things,  fall  short  of  the  true  explanation,  which,  as 
lias  been  observed,  is  to  be  found  in  the  race-nature  of 
the  colonist.  Thanks  to  the  conditions  of  colonial  ex 
istence  which  permitted  these  colonies  to  develop  them 
selves,  they  came  to  be  natural  and  complete  expo 
nents  of  the  most  powerful  forces  of  their  being ;  of 
inherent,  spontaneous,  irresistible  individuality  in  gov 
ernment,  and  of  abiding  love  of  the  soil.  Without 
these  traits  they  would  have  become  mere  factories  of 
British  commerce,  but,  with  these,  they  became  auto 
nomies,  each  of  which  was  as  rich  in  institutions  and 
in  personal  liberty,  as  England  herself  was. 

A  comparison  of  the  British  colonies  with  those  of 
France  or  of  Spain,  which  bordered  them,  will  show 
them  to  be  creatures  of  growth  and  development,  and 
that  this  growth  and  development  is  to  be  attributed 
to  their  self-government.  So  well  was  this  understood 
at  Whitehall,  that  the  fixed  and  wise  maxim  of  ad 
ministration  concerning  them  was,  Let  them  alone  :  a 
maxim  recognized  by  George  II.,  when  he  said  :  "  I  do 
not  understand  the  colonies ;  I  wish  their  prosperity. 
They  appear  to  be  happy  at  present,  and  I  will  not  con 
sent  to  any  innovations,  the  consequences  of  which  I 
cannot  foresee."  l 

1  "  Solomon  in  all  his  glory,"  said  John  Adams,  "  could  not  have 
said  a  wiser  thing."  Life  and  Works,  x,  347. 


CHAPTER  IV. 

SEPARATENESS     OF    THE    BRITISH     COLONIES  — 
CONTINUED. 

Separateness  during  the  Stamp  Act  period  ;  during  the  Congressional 
period  —  Congresses  of  1774  and  1775  —  The  Declaration  of  Inde 
pendence  —  Local  self-government. 

How  dominating  and  persistent  this  principle  of 
local  self-government  was,  is  shown  by  its  manifesta 
tions  during  the  Revolutionary  period,  which  extended 
ffom  the  agitation  of  the  Stamp  Act  to  the  adoption 
of  the  Constitution  of  the  United  States.  This  period 
may  be  divided  into  three  subdivisions,  as  follows : 
the  time  intervening  between  the  beginning  of  the 
Stamp  Act  agitation  and  the  Congress  of  1774 ;  that 
between  the  meeting  of  such  Congress  and  the  adop 
tion  of  the  Articles  of  Confederation,  and  that  which 
ensued  until  terminated  by  the  adoption  of  the  Con 
stitution. 

It  needs  little  more  than  to  recall  the  expressions  of 
public  feeling  during  the  Stamp  Act  period  —  the 
speech  of  Otis  concerning  the  writs  of  assistance,  the 
addresses  of  the  committees  of  correspondence  and 
congresses,  and  the  like  —  to  see  that  the  underlying 
principle  maintained  by  the  colonies,  was  the  integrity 
and  independence  of  their  local  legislatures  and  the 
sanctity  of  their  personal  freedom.  Resistance  to  en 
croachment  by  the  British  Parliament  was  the  cry, 


UNION  NOT   YET  A   FORCE.  65 

and  for  the  reason,  that,  not  being  represented  therein, 
such  parliament  was  not  their  own,  and,  therefore,  had 
no  right  to  legislate  for  them.  They  had  their  own 
parliaments,  and,  to  the  minds  of  the  colonists,  their 
local  self-government  being  menaced,  to  prevent  its  vio 
lation  they  united  in  taking  up  arms. 

As  affairs  neared  the  vortex  of  actual  hostilities, 
one  might  suppose  that  the  gravity  of  the  situation 
would  compel  a  union  of  all  the  governmental  forces 
possessed  by  the  colonies.  Surely,  in  the  face  of  the 
overawing  danger  without  and  of  the  perilous  distrac 
tion  within,  the  instinct  of  self-preservation  should 
prompt  a  complete  and  harmonious  union.  Nothing 
of  the  sort  occurred ;  it  was  still  mere  combination, 
and  one  which  was  restricted,  incomplete,  and  inhar 
monious.  This  condition  can  be  accounted  for  —  the 
sentiment  of  union,  which  had  been  growing  for  ten 
years  past,  had  been  too  lately  awakened  to  become 
presently  an  active  and  willing  force ;  its  character  was 
not  yet  well  enough  understood,  it  was  not  altogether 
above  suspicion ;  it  exacted  too  much  of  those  who 
never  had  been  called  upon  to  share  their  liberties  with 
their  neighbors,  and,  in  a  word,  it  was  still  a  senti 
ment,  strong  enough  to  effect  a  combination  of  arms, 
it  is  true,  but  was  not  strong  enough  to  act  the  part 
of  a  binding,  cohesive  force.  It  could  induce  a  com 
bination  which  promised  immediate  and  visible  results, 
but  when  it  came  to  exacting  the  surrender  of  liberties 
to  a  power  yet  to  be  created,  and  for  results  that  could 
not  be  forecast,  it  was  impotent.  A  colonist  of  Rhode 
Island,  for  example,  knew  nothing  of  colonial  rela 
tions,  except  those  existing  between  Rhode  Island  and 
the  crown ;  to  him  there  were  none  else,  and  all  the 


66    POLITICAL  SEPARATENESS  OF  COLONIES. 

opinion  that  he  could  entertain  upon  the  present 
troubles  was,  that  his  own  colony  and  its  fellows  were 
in  a  bad  plight  together,  and  that,  as  the  conditions 
were  similar,  common  counsel  and  common  effort  were 
better  than  individual  action.  Further  than  this  he 
did  not  go ;  as  for  a  common  colonial  parliament  with 
governmental  powers,  his  mind  had  never  suggested, 
much  less  entertained,  such  a  notion,  and,  had  it  been 
broached,  he  would  have  rejected  it,  if  on  no  other 
ground  than  that  it  would  be  turning  over  to  a  new 
and  untried  creation  in  America  powers  which  he  was 
then  denying  to  an  ancient  and  venerated  institution 
in  England ;  he  would  be  yielding  to  equals  the  very 
thing  he  denied  to  those  who  asserted  that  they  were 
his  superiors,  and  who  he  half-believed  were  his  supe 
riors.  Accordingly,  the  Congress  in  which  he  con 
sented  to  appear,  was  a  body  that  met  merely  for  coun 
sel  and  not  for  government. 

But,  even  had  this  sentiment  been  strong  enough  to 
sustain  union,  the  capacity  to  effect  it  was  wanting ; 
for,  so  long  as  the  colonies  remained  dependencies, 
they  were  confined  within  the  limitations  of  depend 
encies  ;  and  such  organizations,  as  we  have  seen,  had 
no  power  to  unite.  Union  of  governmental  forces  in 
the  face  of  administrative  prohibition,  would  be  re 
bellion,  and  they  abhorred  and  repudiated  the  thought 
of  rebellion.  No  man  can  serve  two  masters,  and,  so 
long  as  they  held  to  their  allegiance  to  the  king,  they 
could  serve  no  one  else ;  any  other  position  would  be 
a  contradiction  of  their  assertion  that  they  would  suf 
fer  interference  in  their  affairs  from  none  except  their 
natural  lord,  the  king.  They  might  counsel  together, 
but  they  could  not  act  as  one  power ;  and  that  this 


COMBINATION  NOT   UNION.  67 

was  the  yiew  taken  by  them  of  their  position,  is  clear 
from  an  examination  of  the  credentials 1  by  which  they 
empowered  their  delegates  to  meet  in  Congress.  One 
and  all  set  forth  these  things :  1,  that  the  delegates 
were  to  consult  and  advise  with  those  from  the  other 
colonies  respecting  the  present  troubles ;  2,  that  Con 
gress  should  define  and  describe  the  rights  of  Amer 
icans  with  certainty ;  3,  that  it  should  devise  a  plan 
of  maintaining,  upon  constitutional  principles,  the 
ancient  union  with  the  mother  country ;  4,  that  this 
general  plan,  suggested  by  Virginia  and  Maryland, 
should  operate  on  the  commercial  connection  of  the 
colonies  with  Great  Britain ;  and,  5,  that,  when  agreed 
upon,  the  plan  should  be  recommended  to  all  who  were 
interested.  Thus,  the  effect  of  united  action  would 
result  from  the  simultaneous  but  individual  action  of 
the  thirteen  colonies. 

There  is  not  a  word  in  these  credentials,  nor  any 
internal  evidence,  leading  to  the  supposition  that  new 
relations  with  anybody  were  contemplated,  nor  that 
anything  was  sought  for  but  such  a  modification  of 
the  old  relations  with  the  crown  as  would  give  the  ef 
fect  of  a  constitutional  guaranty  to  their  liberties  — 
such  a  guaranty  as  the  English  themselves  enjoyed 
under  the  Bill  of  Rights  and  kindred  securities.  Nor 
is  there  to  be  found  in  these  documents  any  expression 
that  had  the  appearance  of  a  colony  arrogating  to  it 
self  the  attributes  of  sovereignty.  It  will  be  observed, 
that,  in  constituting  the  Continental  Congress  of  1774, 
the  colonies  acted  in  their  individual  capacity,  without 
reference  to  each  other,  and  that  they  made  common 
cause  from  no  political  association,  but  only  because 

1  Journal  of  Congress,  I.     See  Appendix  A. 


68     POLITICAL  SEPARATENESS  OF  COLONIES. 

the  principles  at  stake  affected  every  one  alike,  and 
because  the  object  sought  was  the  same  in  every  case ; 
that  each  colony  appointed  its  own  delegates,  instruct 
ing  them  according  to  its  notions  of  right  and  policy, 
but  making  no  pretence  of  conferring  power  and  au 
thority,  which,  as  a  dependency,  it  did  not  possess, 
and  that,  therefore,  no  colony  gave  any  power  or  au 
thority,  except  for  deliberation  and  advisement  only, 
i.  e.,  to  ascertain  what  should  be  done,  not  to  do ;  that 
the  purposes  set  forth  were,  not  to  establish  a  new 
government,  but,  upon  constitutional  principles,  to  pre 
serve  the  old  one ;  and  that  this  Congress  was  organ 
ized  by  the  colonies  as  colonies,  and  with  a  careful 
regard  to  their  separate  and  independent  rights  and 
powers ;  for  it  was  restricted  to  declaring  what  the 
hitherto  undefined  rights  of  Americans  were,  to  devis 
ing  a  plan  of  reconciliation  by  operating  on  their  com 
mercial  character  as  feeders  to  British  commerce,  and 
to  ending  its  deliberations  with  a  recommendation  of 
the  course  agreed  upon. 

That  the  Congress  confined  itself  within  the  limita 
tions  thus  set  -upon  it,  and  recognized  its  subordination 
to  its  creators,  is  evident  from  its  own  action.  In 
accordance  with  the  instructions  to  the  delegates  to 
settle  the  undetermined  position  of  the  colonist,  in 
respect  to  the  crown  and  to  Parliament,  the  Congress, 
upon  report  of  a  committee  composed  of  two  from 
each  province,  made  a  Declaration  of  Colonial  Eights. 
This  Declaration  was  in  the  nature  of  a  Bill  of  Rights, 
and  was  intended  to  perform  the  same  office  for 
America  that  the  English  Bill  of  Rights  had  clone  for 
England ;  the  latter,  of  course,  not  extending  to  this 
country  or  any  of  the  dependencies,  inasmuch  as  its 


CONGRESS   OF  1774  A   MERE   COUNCIL.      69 

extent  was  limited  to  the  territory  of  England.  The 
instruction  to  "  operate  on  the  commercial  connection," 
the  one  most  vital  to  the  interests  of  Great  Britain, 
was  obeyed  by  adopting  the  "  Articles  of  Association," 
or  the  non-intercourse,  non-importation,  and  non-con 
sumption  pledges.  The  instruction  to  devise  a  plan 
for  maintaining,  upon  constitutional  principles,  the 
ancient  union  with  the  mother-country,  was  fulfilled 
by  a  grave  and  dignified  "  Address  to  the  People  of 
Great  Britain,"  together  with  "  A  Petition  to  the 
King." l  Thus,  having  advised  and  consulted  to 
gether  and  set  forth  their  plan,  and  having  obeyed 
their  instructions  without  exceeding  them,  Congress 
dissolved,  and  the  delegates  returned  home  to  report 
to  their  colonies,  through  their  Assemblies,  what  they 
had  done. 

There  is  nothing  in  our  history  more  clear  and  cer 
tain  than  this :  that  the  Congress  of  1774,  as  far  as 
its  functions  are  concerned,  was  nothing  more  than  a 
council.  Except  in  respect  to  discussion,  it  had  no 
features  of  a  parliament.  It  was  not  a  legislature ;  it 
neither  legislated  nor  did  it  pretend  to  legislative 
power.  It  entertained  no  bills,  it  passed  no  acts,  it 
left  behind  it  no  statutes.  It  resolved  merely,  nor  did 
its  resolutions  have  any  greater  force  than  that  which 
was  lent  them  by  their  own  importance,  or  by  the  char 
acter  of  the  delegates  who  made  them ;  for,  the  reso 
lutions,  once  taken,  had  no  motion  of  their  own,  but 
only  such  as  was  given  by  the  recommendation  of  the 
Congress.  They  carried  with  them  no  authority,  but 
depended  for  their  efficacy  upon  the  will  of  those  to 

1  The  Address  was  drafted  by  Jay,  and  the  Petition  to  the  king  by 
Dickinson. 


70     POLITICAL  SEPARATENESS  OF  COLONIES. 

whom  they  were  addressed ;  for  each  colony  was  at 
perfect  liberty  to  accept  or  reject  them.  Thus,  Con 
gress  could  resolve,  but  not  enact :  it  could  recom 
mend,  but  not  enjoin.  Organized  for  the  sole  pur 
poses  of  ascertaining  and  declaring  colonial  rights 
with  precision,  and  of  devising  and  recommending 
proper  measures  for  the  redress  of  grievances  and  the 
security  of  rights,  (which,  having  the  force  of  custom, 
nevertheless  lacked  the  sanctity  of  constitutional  guar 
anty),  when  these  purposes  were  accomplished  its 
work  was  done,  it  w&sfunctus  officio,  and,  destitute  of 
the  power  of  prolonging  its  existence,  it  did  not  ad 
journ,  but  it  dissolved  and  disappeared  forever. 

One  thing  clearly  appears :  the  Congress  of  1774 
was  not  a  revolutionary  body. 

The  character  of  this  assembly  is  indicated  by  its 
name ;  it  was  a  congress  or  body  of  delegates  for  the 
transaction  of  matters  between  parties  independent  of 
each  other.  It  is  clear,  that  it  was  constituted  by  the 
concurrent  action  of  as  many  peoples  as  were  repre 
sented  in  it,  and  that  each  of  these  peoples  asserted 
its  individuality  by  casting  one  vote,  irrespective  of  the 
number  of  its  delegates ;  and  it  is  equally  clear,  that, 
as  it  was  not  the  creation  of  one  people,  neither  did 
its  organization  make  these  people  one.  The  colonies, 
being  dependencies,  and  having  the  intention  of  re 
maining  such,  as  their  instructions  to  the  delegates 
testify,  had  not  the  political  capacity  to  effect  union. 
For,  to  effect  union  requires  parties  who  are  as  inde 
pendent  of  the  world  as  they  are  of  each  other,  and 
who  have,  of  themselves,  the  governmental  powers, 
executive,  legislative,  and  judicial,  necessary  to  the 
creation  of  a  new  body  politic  which  is  to  be  the  vis- 


NO  NEW  SOVEREIGNTY.  71 

ible  and  tangible  form  of  their  union.  These  powers 
the  colonists  did  not  possess  in  entirety.  What  of 
them  they  enjoyed,  they  enjoyed  in  a  union  already 
existing  with  their  sovereign  but  not  with  each  other, 
and  this  union  could  not  be  changed,  nor  these  powers 
assumed  in  entirety,  without  severance  from  that  sov 
ereign.  But  the  Congress  was  convened  for  the  ex 
press  purpose  of  maintaining  the  ancient  union.  An 
intention  to  supplant  the  old  regime  by  a  new  one,  an 
act  implying  the  assumption  of  entire  governmental 
powers  and  a  thoroughly  revolutionary  act,  cannot, 
surely,  be  deduced  from  the  assemblage  of  a  body 
which  made  no  pretence  to  the  possession  of  the  execu 
tive,  legislative,  or  judicial  powers  necessary  to  accom 
plish  such  an  end.  The  colonies,  therefore,  in  con 
vening  this  Congress,  took  no  governmental  action 
whatever,  and  any  conclusion  whereby  their  political 
conduct  as  one  people  is  inferred,  or  that  they  exer 
cised  sovereign  powers,  must  be  wrong.  First,  then, 
no  governmental  action  being  taken,  neither  the  sur 
render  nor  the  acquisition  of  constitutional  rights  and 
powers,  by  one  or  by  any,  could  be  possible.  Secondly, 
the  Congress  was  constituted  by  the  concurrent  action 
of  a  number  of  peoples,  none  of  whom  had  cast  off 
their  allegiance  to  the  king ;  so  that  there  was  no 
nation  de  facto.  Thirdly,  the  Congress  itself,  endued 
with  no  element  of  permanence  (an  essential  govern 
mental  element) ,  and  destitute  of  governmental  powers 
of  every  description,  save  that  of  deliberation  and 
discussion,  was  not  a  body  politic,  and,  therefore,  could 
not  be  the  expression  of  anything  like  sovereignty,  nor 
could  its  mere  existence  confer  on  its  creators,  one  or 
many,  the  attributes  of  sovereignty.  Fourthly,  the 


72     POLITICAL  SEPARATENESS  OF  COLONIES. 

parties   to   this   Congress   made   no  compact   of    any 
kind. 

From  all  this,  it  is  evident  that  the  creation  of  a 
new  sovereignty,  or  assumption  of  an  old  one,  cannot 
be  inferred. 

The  Congress  of  1775,  an  entirely  new  and  dis 
tinct  body,  came,  like  that  of  1774,  fresh  from  the 
hands  of  the  colonial  Assemblies ;  being  created  for 
specific  purposes,  and  with  no  greater  scope  and  powers 
than  those  of  its  predecessor.  An  examination  of  the 
credentials  of  the  delegates  displays  the  same  purposes 
of  deliberation  and  advisement,  the  same  limitations 
upon  functions,  and  the  same  lack  of  power  and  au 
thority.1  There  is  the  same  want  of  the  essential  ele 
ment  in  constitutional  government,  permanency.2  It, 
too,  was  created  by  as  many  peoples  as  were  repre 
sented  in  it ;  these  peoples  expressed  themselves,  each 
by  one  vote  irrespective  of  the  numerical  proportion 
of  its  delegation,  and  each  delegation  had  to  report 
the  proceedings  to  its  colony,  as  an  agent  reports  his 
transactions  to  his  principal.  This  Congress,  like  its 
predecessor,  exercised  no  authority,  either  de  facto  or 
de  jure.  The  only  original  powers  it  possessed  were 
those  of  deliberation  and  advisement ;  it  sat  as  an 
assembly  of  the  delegated  agents  of  the  colonies,  rep 
resenting  in  no  one  thing  either  a  people  or  a  sover 
eign,  and  could  claim  no  quality  of  sovereignty,  either 
directly  or  by  implication,  inasmuch  as  it  was  not  a 
constitutional  body,  but  one  wholly  without  govern- 

1  See  Appendix  A. 

2  Massachusetts  and  South  Carolina  limited  the  exercise  of  their 
delegates'  power  to  the  year. 


A    COMMITTEE    OF  SAFETY.  73 

mental  qualities  or  features.  In  all  its  doings  it  re 
ferred  only  to  the  colonies,  and  never  to  a  people  or  a 
sovereign. 

The  true  nature  and  constitution  of  this  Congress 
at  its  inception,  should  be  kept  steadily  in  view,  inas 
much  as  confusion  may  result  from  the  fact,  that  its 
scope  and  course  of  action,  though  not  its  nature, 
were  completely  changed  in  consequence  of  revolu 
tionary  events.  The  conduct  of  the  war  fell  upon  its 
shoulders  ;  for  the  affair  at  Lexington 1  was  the  signal 
for  active  hostilities,  and  thenceforth  the  character  of 
this  body  conformed  to  the  necessities  of  revolution. 
Instead  of  remaining  a  merely  deliberative  assembly, 
the  Congress  became  an  active  body,  exercising  powers 
with  which  it  never  had  been  endowed,2  and  perform 
ing  functions  which  never  had  been  prescribed.  It 
became,  in  fact,  a  revolutionary  body,  a  Committee  of 
Public  Safety ;  and,  assuming  powers  which  had  not 
been  granted,  it  committed  acts,  the  validity  of  which 
depended  absolutely  upon  the  acquiescence  and  ap 
proval  of  its  creators.  A  government  de  facto,  it 
never  became  one  de  jure,  but  maintained  its  position 
solely  by  virtue  of  the  necessities  of  war  and  the  con 
venience  of  the  colonies.  Concert  of  action  was  the 
first  need  of  the  times,  and  to  this  end  it  was  made 
use  of  as  an  instrument  which  was  ready  at  hand. 
Fortunately,  its  assumption  of  powers  could  be  safely 
tolerated,  inasmuch  as  the  causes  which  provoked  it 
were  temporary  and  peculiar,  and  devoid  of  the  qual 
ities  which  would  make  such  precedent  a  dangerous 

1  Lexington,   19   April;    2d  Congress,  May   10,   1775.     With   the 
exception  of  New  York,  all  the  delegates  were  chosen  previously  to 
the  affair  at  Lexington. 

2  Journals,  i,  81,  82 ;  162  ;  112 ;  118,  etc. 


74     POLITICAL  SEPARATENESS  OF  COLONIES. 

one ;  but  that  which  particularly  ensured  the  public 
safety  was,  that  the  colonies  could  at  any  moment 
correct  abuse  of  these  powers  by  recalling  their  dele 
gates,  and  thus  at  once  put  an  end  to  usurpation  and 
usurpers.  As  a  matter  of  fact,  however,  the  colonies 
had  nothing  to  complain  of  Congress  in  this  respect, 
even  had  they  been  disposed  to  criticize  censoriously 
the  measures  taken  in  their  behalf  ;  for  these  measures 
do  not  appear  to  have  been  adverse  to  the  principle 
that  the  new  states  were  sovereign  and  independent. 
It  is  apparent  that  Congress  strictly  maintained  its 
character  as  a  deliberative  body  as  long  afe  possible, 
and  that  it  did  not  assume  powers  not  belonging  to 
it,  until  the  pressure  of  hostilities  compelled  it  to  do 
so.  Even  then,  it  never  for  a  moment  lost  sight  of 
its  real  nature  and  its  real  relations  to  the  colonies ;  it 
continued  to  resolve,  but  not  enact ;  to  recommend, 
but  not  command.1  The  colonies  were  still  the  prin 
cipals,  the  delegates  were  still  their  agents,  and  never 
by  a  single  act  did  Congress  betray  the  notion,  that  it 
was  accountable  for  the  exercise  of  power  to  one  peo 
ple  instead  of  to  thirteen  peoples,  or  that  there  existed 
a  general  government  representing  a  single  sovereignty. 
After  the  Declaration  of  Independence,  fey  the  force 
of  which  paramount  authority  was  held  to  exist  in  the 
people  of  each  state,  Congress,  now  a  Eevolutionary 
Committee  entrusted  with  the  public  safety,  assumed 
powers  exercised  by  sovereigns,  as  far  as  external  re 
lations  were  concerned ;  such  as  the  right  to  declare 
war  and  to  make  peace,  to  authorize  captures,  to  insti 
tute  appellate  prize-courts,  to  direct  and  control  the 

"  Congress  is  properly  a  deliberative  corps,  and  it  forgets  itself 
when  it  attempts  to  play  the  executive."     Hamilton  to  Duane,  1780. 


SOVEREIGNTY  RETAINED  BY   THE  STATES.   75 

military  and  naval  operations,  to  form  alliances  and 
make  treaties,  to  contract  debts  and  issue  bills  of  credit 
on  the  public  account,  and,  in  general,  such  powers,  in 
the  external  relations  of  the  country,  as  were  necessary 
to  insure  the  efficacy  arising  from  concert  of  action. 
But  the  exercise  of  these  powers  was  not  inconsistent 
with  the  federal  character  now  borne  by  the  lately 
separate  colonies.  Many  of  them  could  not  in  prac 
tice  be  exerted  conveniently  by  single  colonies,  and 
none  were  ever  considered,  either  by  Congress  or  by 
the  states,  to  be  exclusive  of  the  latter's  right  to  ex 
ercise  them.  On  the  contrary,  different  colonies  exer 
cised  these  powers  contemporaneously  with  Congress, 
by  raising  troops  on  their  own  account,  by  carrying  on 
military  operations,  and  by  commissioning  vessels  of 
war ;  thus  asserting  their  sovereignty,  and  this  with 
out  a  word  of  objection.1  Troops  required  by  Con 
gress  were  raised  by  the  states,  and  the  commissions 
of  the  officers  were  countersigned  by  the  governors, 
who  typified  the  paramount  authority.  Congress 
issued  bills  of  credit,  but  had  no  power  to  make  them 
a  legal  tender,  nor  even  to  punish  counterfeiters ;  nor 
could  they  bind  the  states  to  redeem  their  bills,  nor, 
of  themselves,  raise  the  funds  necessary  for  redemp 
tion.  Congress  could  not  extend  to  foreign  envoys 
the  protection  they  receive  from  every  nation.  In 
June,  1776,  Congress  recommended  the  enactment  of 
laws  defining  and  punishing  treason,  and  it  is  very 
clear  that  it  made  no  pretensions  to  sovereignty,  for  it 
takes  the  ground  that  the  crime  shall  be  deemed  as 

1  "  Every  state  in  the  Union,  both  while  a  colony  and  after  becom 
ing  independent,  had  been  in  the  practice  of  issuing-  paper  money." 
Sturgess  v.  Crowninshield,  4  Wheaton,  203 ;  Marshall,  C.  J.  Some 
states  supported  what  they  styled  navies ;  as  witness  Pennsylvania. 


76     POLITICAL  SEPARATENESS  OF  COLONIES. 

committed  against  the  colony  individually,  and  not 
against  the  colonies  collectively  or  federative.  Evi 
dently,  there  was  no  sovereignty  in  this  body,  how 
ever  governmental  it  came  to  be ;  whatever  was  done, 
was  efficacious  only  as  far  as  it  was  acquiesced  in  by 
the  states,  as  their  refusal  of  an  embargo,  requested 
by  Congress,  shows.1 

Thus,  even  after  the  Declaration  of  Independence, 
the  relations  of  Congress  to  the  colonies  remained  un 
changed.  Its  subordination  was  complete  and  unmis 
takable  ;  its  assumption  of  powers  was  acquiesced  in 
as  a  matter  of  expediency,  or  act  of  grace,  but  not  as 
of  right.  Moreover,  these  powers,  when  exercised, 
were  not  regarded  as  resting  exclusively  in  Congress, 
but  as  exerted  exceptionally  and  temporarily  by  the 
only  body,  happening  to  exist,  which  could  express  the 
general  will  and  wield  the  combined  strength  of  so 
many  different  peoples  whose  purposes  were  alike. 
All  its  functions  were  exercised  upon  the  external  re 
lations  of  the  colonies,  or  upon  those  common  affairs 
presented  by  the  peculiar  exigencies  of  war.  As  for 
the  internal  life  of  the  colonies  or  states,  Congress 
never  meddled  with  it  in  the  slightest  degree.  In  re 
gard  to  this,  it  never  resolved,  nor  recommended.  It, 
indeed,  recommended  "to  the  respective  assemblies 
and  conventions  of  the  united  colonies,  where  no  gov 
ernment  sufficient  to  the  exigencies  of  their  affairs 
had  been  established,  to  adopt  such  a  government  as 
should,  in  the  opinion  of  the  representatives  of  the 
people,  best  conduce  to  the  happiness  and  safety  of 

1  A  striking-  instance  is  the  law  enacted  by  Pennsylvania,  indemni 
fying  those  who  acted  in  obedience  to  this  resolution  of  Congress. 
2  Dall.  Col.  L.  of  Pa.,  3. 


DECLARATION   OF  INDEPENDENCE.         11 

their  constituents  in  particular,  and  of  America  in 
general,"  l  but  it  needs  no  argument  to  prove  that  a 
recommendation  to  establish  a  government  is  not  med 
dling  with  one ;  on  the  contrary,  a  recommendation  to 
others  to  perform  each  an  act  of  sovereignty  is  a 
recognition  of  sovereignty  in  these  others,  and  of 
these  others  there  were  thirteen  individuals. 

It  is  evident,  then,  that  after  the  Declaration  of  In 
dependence,  there  was  nothing  in  the  states  from  which 
the  existence  of  one  common,  general  people  could  be 
inferred,  nothing  to  indicate  a  nation  de  facto.  So 
far,  the  union  of  the  colonies  or  states  was  exceedingly 
imperfect;  a  combination,  a  partnership,  there  may 
have  been,  but  of  a  union  of  governmental  powers 
there  was  little.  If  there  were  any,  it  must  have  lain 
in  Congress,  but,  as  we  have  seen,  this  was  a  body 
merely  deliberative  in  its  inception,  and,  though  as 
suming  governmental  powers  to  a  limited  extent,  it 

1  10th  May,  1776.  1  Elliot's  Debates,  80,  83.  New  Hampshire, 
South  Carolina,  Virginia,  and  New  Jersey  adopted  state  constitutions 
before  independence  was  declared,  in  compliance  with  a  special 
recommendation  to  them  by  Congress  to  do  so,  made  in  1775.  Penn 
sylvania,  Delaware,  Maryland,  and  North  Carolina  adopted  constitu 
tions  in  1776  ;  Georgia  and  New  York  in  1777  ;  and  Massachusetts  in 
1780. 

One  effect  of  the  organization  of  state  governments  was  the  with 
drawal  from  Congress  of  many  of  the  leading  men,  who  returned 
home  to  take  part  in  the  transformation  of  their  ancient  colonial  con 
stitutions  to  new  state  forms.  This  withdrawal,  the  assignment  of 
others  to  civil  positions  which  were  incompatible  with  service  in 
Congress,  and  the  transfer  of  others  still  to  the  army,  materially 
weakened  this  body,  and  delayed  the  adoption  of  the  Articles  of 
Confederation.  The  absence  of  such  men  as  John  Adams,  Benjamin 
Franklin,  Thomas  Jefferson,  Robert  Treat  Paine,  Francis  Hop- 
kinson,  Benjamin  Rush,  Samuel  Chase,  George  Wythe,  Benjamin 
Harrison,  Caesar  Rodney,  Edward  Rutledge,  Arthur  Middleton,  and 
William  Hooper,  could  not  fail  to  make  itself  felt  detrimentally. 
Hamilton  to  Clinton,  February  13,  1778. 


78    POLITICAL  SEPARATENESS  OF  COLONIES. 

never  reached  a  stage  of  development  which  implied 
the  exercise  of  executive,  legislative,  and  judicial 
functions,  nor  ever  exceeded  the  subordination  to 
its  creators  which  they  had  impressed  upon  it  from  the 
beginning. 

Much  has  been  said  and  written,  to  convey  the  idea 
that  the  Declaration  of  Independence  was  the  act  of 
one  people,  instead  of  thirteen  bodies  politic,  and  that 
it  implied  the  existence  of  a  nation  de  facto.  The 
attempt  has  proved  a  vain  one,  and  has  been  made  in 
defiance  of  adverse  historical  facts,  and  of  the  known 
constitution  of  the  body  that  promulgated  it.  An 
expression  of  certain  peoples,  now  fairly  united  in 
sentiment,  but  still  without  political  union,  except  of 
the  crudest  description,  it  was ;  but  not  of  one  people. 
The  fact  that  several  parties  unite  in  a  certain  act, 
does  not,  per  se,  make  them  one.  Such  a  fact  might, 
under  peculiar  circumstances,  be  accepted  as  evidence 
of  oneness,  if  corroborated  by  extrinsic  evidence,  but 
the  corroboration  must  be  complete  and  irresistible. 
In  this  case,  however,  there  is  no  ground  for  inference, 
for  the  evidence,  far  from  being  corroborative,  is, 
in  every  respect,  contradictory  to  the  notion.  The 
political  structure  of  the  colonies,  the  vicarious  char 
acter  of  Congress,  the  circumstances  under  which  the 
instrument  was  produced  and  its  plain  terms,  all  rebut 
the  presumption  that  the  Declaration  of  Independence 
was  the  act  of  the  people  of  the  colonies  taken  to 
gether  as  one,  by  the  instrumentality  of  their  repre 
sentatives,  and  demonstrate  conclusively  that  it  was 
the  joint  expression  of  the  several  colonies,  by  the  in 
strumentality  of  their  delegates  acting  in  concert. 

In  their  condition  as  dependencies  of  the  crown,  it 


THIRTEEN  SOVEREIGNTIES.  79 

has  been  seen  that  the  colonies  were  separate  and  dis 
tinct  from  each  other.  The  sovereignty  to  which  they 
were  subject  was  in  this  crown ;  each  held  separately 
of  the  crown,  was  individually  dependent  from  it,  and 
the  sovereignty,  consequently,  was  over  each  but  not 
jointly  over  all.  The  effect  of  the  Declaration  of  In 
dependence  was  to  break  off  the  allegiance  of  the  col 
onist,  and  to  cast  off  the  dependence  of  the  colony  upon 
the  crown.  As  sovereignty,  according  to  the  accepted 
doctrine,  cannot  be  in  abeyance,  it  must  have  existed 
somewhere  the  instant  after  the  declaration,  as  it  ex 
isted  somewhere  the  instant  before,  and  as  there  was  no 
other  body  or  bodies  politic  wherein  it  could  reside, 
the  conclusion  is  natural  that  it  resided  in  the  colonies, 
now,  by  the  mere  force  of  the  assumption  of  sover 
eignty,  transformed  into  states.  But,  as  this  sover 
eignty  had  not  been  joint  over  all  but  separate  over 
each,  so  could  it  not  vest  altogether  in  one  or  more, 
but  in  each.  For,  there  was  no  one  people  to  receive 
it,  but  thirteen  peoples,  and  therefore  each  took  that 
sovereignty  to  itself  to  which  it  had  been  subject  when 
it  resided  in  the  crown ;  or,  to  speak  more  objectively, 
each  of  the  thirteen  peoples  became  sovereign,  and 
each  of  the  thirteen  colonies  became  a  state.  This  is 
the  character  with  which  they  have  invested  themselves 
in  the  Declaration  itself,  and  in  this  character  they 
were  recognized  by  foreign  nations,  as  witness  the 
treaty  of  alliance  with  France  in  1778,  the  treaty  of 
amity  and  commerce  with  the  Netherlands  in  1782, 
the  treaty  with  Sweden  in  1783,  as  well  as  the  pro 
visional  articles  with  Great  Britain  herself  in  1782. 

The  ancient  separateness  of  the  colonies  proved  so 


80    POLITICAL  SEPARATENESS  OF  COLONIES. 

persistent,  that,  though  modified  in  various  ways,  it 
survived  the  shock  of  civil  discord,  and  remained  the 
most  characteristic  feature  of  these  communities.  As 
the  relations  of  the  colonies  became  closer,  this  sepa- 
rateness  became  less  and  less  significant,  until  we  find 
it  giving  way  to  a  broader  and  truer  form  of  expres 
sion,  and  we  recognize  the  term  local  self-government 
as  the  one  best  defining  the  radical  principle  of  their 
being.  Separateness  is  a  term  inconsistent  with  union, 
yet  the  fundamental  principle  which  characterized  sep- 
arateness,  was,  nevertheless,  the  one  which  provoked 
our  Revolution,  and  which,  emerging  from  the  storm 
unshaken,  became  at  last  the  dominating  force  of 
union ;  this  principle  was  local  self-government.  It 
nurtured  the  colonies  when  mere  settlements,  and  con 
tinued  its  care  until  it  had  reared  them  into  states ;  it 
had  brooded  over  the  waters,  and,  henceforth,  was  to 
be  the  ruling  spirit  of  the  new  creation. 


CHAPTER  V. 

THE    ARTICLES    OF   CONFEDERATION. 

The  Articles  of  Confederation  expressive  of  segregation,  and  also  of 
union  —  Old  School  and  New  School  —  The  government  designedly 
a  weak  one  ;  elimination  of  the  "  ruler  "  element  —  Confederation 
sugg-ested  by  the  New  England  Confederation  of  1648  —  Slight 
effect  of  the  Revolution  upon  the  colonial  governments  —  Growth 
of  union  —  Defects  of  the  Articles  of  Confederation  as  a  govern 
mental  structure  set  forth  by  Hamilton. 

THAT  this  individuality  was  the  all-compelling  im 
pulse  of  the  new  states,  as  it  had  been  of  the  old 
colonies,  is  manifest  from  an  examination  of  the  Ar 
ticles  of  Confederation.  These  Articles  have  always 
been  regarded  from  the  historical  point  of  view,  with 
great  interest,  inasmuch  as  they  set  forth  the  notion 
of  union  at  that  time  entertained  by  the  colonies  :  and 
being  the  first  definite  and  solemn  enunciation  of  that 
principle,  we  see  not  only  what  it  was,  but,  knowing 
its  antecedents,  we  can  definitely  ascertain  its  growth 
and  development.  Equally  interesting  is  it  from  the 
political  standpoint ;  for  it  discloses  with  certainty  the 
bounds  and  limits  beyond  which  the  colonies  would 
not  go  in  their  effort  to  create  a  new  government  com 
mon  to  them  all.  The  first  glance  shows  that  the  old 
condition  of  separateness  had  left  behind  it  its  quali 
ties  and  traditions  ;  everywhere  indisposition  to  yield 
independence  of  action  is  manifest,  and,  where  yielded, 
the  authority  to  decide  on  appeal  is  retained.  The 


82       THE  ARTICLES   OF  CONFEDERATION. 

parties  to  this  compact  call  themselves  the  United 
States  ;  but,  were  they  so  ?  The  Articles  undoubtedly 
testify  to  one  thing  of  profound  significance,  that  the 
sentiment  of  union  had  become  at  last  an  active  polit 
ical  force.  But  it  must  be  borne  in  mind,  that  com 
bination  is  not  union,  and  that  even  partial  union  is 
not  such  union  as  satisfies  the  notion  of  unity  which 
has  prevailed  among  us  since  the  adoption  of  the 
present  Constitution.  Concert  of  action,  as  displayed 
by  the  continental  army  and  by  the  contribution  of 
funds  needful  to  carry  on  war  and  manage  the  business 
of  external  relations,  does  not  constitute  the  union 
now  exacted  by  American  publicists.  In  order  to  a 
complete  and  perfect  union  of  independent  parties, 
there  must  be  a  compact  between  sovereigns  by  virtue 
of  ivhich  a  body  politic  is  created,  centred  and 
common  to  the  contracting  parties,  itself  sovereign  to 
the  extent  of  its  delegated  powers  and  no  further, 
which  acts  directly  upon  the  citizens  of  each  contract 
ing  sovereignty  and  which  contains  in  itself  executive, 
legislative,  and  judicial  powers  in  such  integrity  and 
with  such  freedom  of  action,  that  the,  purposes,  of  its 
being  may  be  subserved  as  promptly  and  effectually 
as  if  it  had  been  a  sovereign  power  from  time  im 
memorial.  Nothing  short  of  this  now  satisfies  what 
may  be  styled  the  American  notion  of  union,  nor  will 
the  term  be  applied  for  a  moment  to  anything  inferior 
to  this  in  constitution.  But,  where  in  the  Articles  of 
Confederation  is  the  evidence  of  such  a  union  ?  where 
the  body  politic  containing  in  itself  the  combination  of 
governmental  powers  which  are  needful  to  subserve 
readily  the  purposes  of  its  being  ?  where  are  executive, 
legislative,  and  judicial  powers  complete,  entire,  and  in 


MODERN  NOTION  OF  UNION.  83 

harmonious  combination?  Nothing  is  clearer  from 
this  instrument,  than  that  separateness  had  yielded  to 
union,  and  that  local  self-government  was  more  than 
ever  the  radical  and  dominating  principle ;  but  noth 
ing,  too,  is  clearer,  than  that  the  union  then  denned 
was  an  incomplete  one,  a  union  scarcely  worthy  of 
the  name,  according  to  modern  notions,  and  that  the 
principle  of  local  self-government,  still  distrustful  of 
its  ground,  could  not  bring  itself  to  creating  a  repre 
sentative  government  with  any  power  in  complete 
ness  heretofore  exercised  by  the  sovereign  only.  The 
states  existed  as  they  exist  to-day,  but  not  so  the 
Union. 

A  slight  scrutiny  will  prove  the  truth  of  the  fore 
going  remarks.  The  first  article,  announcing  merely 
the  style  of  the  Confederation,  viz :  the  United  States 
of  America,  is  immediately  followed  by  the  declaration, 
that  "  each  state  retains  its  sovereignty,  freedom  and 
independence,  and  every  Power,  Jurisdiction  and  right, 
which  is  not  by  this  confederation  expressly  delegated 
to  the  united  states,  in  congress  assembled."  This 
clause,  in  the  highest  degree  prudential,  hardly  bears 
out  the  construction  sometimes  put  upon  it,  that  it  is, 
in  itself,  evidence  that  the  parties  to  it  intended  no 
union ;  on  the  contrary,  it  implies  a  union  of  the  pow 
ers  that  are  contributed,  and  further  implies  that  the 
parties  to  the  compact  are  sovereign  and  equal.  It, 
and  the  article  following,  taken  together,  strongly  im 
ply  that  there  shall  be  no  consolidation ;  but  they  as 
strongly  imply  also,  what  is  clearly  stated  in  the  pre 
amble,  that  there  shall  be  union  of  some  kind.  But, 
again  the  question  recurs,  what  kind  of  union  ?  The 
second  clause,  just  quoted,  answers,  "  confederation  " 


84       THE  ARTICLES   OF  CONFEDERATION. 

an  incomplete  and  inchoate  union,  and  that  there  may 
be  no  doubt  concerning  the  degree  of  unity,  the  third 
clause  specifies  the  nature  of  this  confederation  and  the 
purposes  of  its  creation,  as  follows :  "  the  said  states 
hereby  severally  enter  into  a  firm  league  of  friendship 
with  each  other  for  their  common  defence,  the  security 
of  their  Liberties,  and  their  mutual  and  general  wel 
fare,  binding  themselves  to  assist  each  other,  against 
all  force  offered  to,  or  attacks  made  upon  them,  or  any 
of  them,  on  account  of  religion,  sovereignty,  trade,  or 
any  other  pretence  whatever."  It  will  be  observed 
how  clearly  and  unmistakably  the  notion  of  indivi 
duality  is  conveyed  —  the  said  states  "  severally " 
confederate  with  each  other ;  and  how  precisely  the 
nature  of  the  confederation  is  set  forth  —  it  is  to  be 
merely  "  a  league  of  friendship."  Such  a  thing  as 
contribution  of  full  governmental  powers,  that  is  to 
say,  a  complete  union,  is  not  so  much  as  hinted  at. 
The  states  act  as  sovereigns,  but  as  reluctant  sover 
eigns,  who  are  more  disposed  to  retain  than  to  impart. 
Thus  each  state  retained  what  was  not  expressly 
delegated,  or,  as  it  would  be  expressed  now-a-days, 
each  state  not  only  retained  what  was  not  expressly 
delegated,  but,  in  retaining,  forbade  the  exercise  of 
implied  powers,  and  the  establishment  of  powers  by 
construction  ;  and  thus  protected  and  guarded  in  their 
local  governments,  the  states  solemnly  made  together 
—  a  mere  league  of  friendship,  and  for  the  purpose 
of  effecting  the  ends  prescribed,  and  nothing  more. 
These  purposes  or  objects  by  no  means  involved  the 
creation  of  a  central  and  directly-acting  government, 
and  thus  this  instrument  is  to  be  regarded  as  be 
ing  merely  what  it  says  it  is,  a  league  of  friendship 


TWO  DIFFERING  SCHOOLS.  85 

for  the  attainment  of  certain  and  specified  objects. 
Inasmuch  as  it  was  the  first  step  to  the  existing  con 
stitution,  it  has  been  styled  "  the  First  Constitution  of 
the  United  States,"  a  designation  at  which  no  one 
should  cavil,  for  crude  and  rudimental  though  it  be,  it 
is,  nevertheless,  a  constitution,  and  worthy  of  earnest 
study.  One  thing  respecting  it  is  very  clear  ;  that  it 
is  more  valuable  to  the  historian  in  showing  the 
growth  and  development  of  the  sentiment  of  union, 
than  it  is  to  the  politician  as  an  expression  of  what 
the  American  notion  of  union  has  been  since  the  adop 
tion  of  the  present  Constitution. 

Diversity  of  opinion  regarding  the  nature  of  govern 
ment  and  the  relations  of  the  citizen,  had  assumed  in 
the  course  of  time  two  forms,  which  are  not  adequately 
defined  by  the  modern  names  of  Conservative  and 
Liberal,  but  to  which  may  be  applied  those  of  Old 
School  and  New  School.  Whatever  the  separateness 
of  the  colonies,  there  had  been  no  bounds  to  the  ex 
pansion  of  political  inquiry,  which  now,  in  greater  or 
less  vigor,  overspread  the  land.  The  class  of  colonists 
which  was  content  with  the  British  constitution  as  it 
stood,  and  which  was  ready  to  abide  by  it  without 
question ;  the  class  which  scouted  the  application  of 
philosophical  inquiry  to  so  practical  a  subject  as  that 
of  government  and  was  determined  to  adhere  to  the 
empire,  right  or  wrong,  was  to  be  found  mostly  among 
the  loyalists.  When  those  comprising  it  had  been 
silenced,  expelled,  or  had  taken  voluntarily  their 
places  in  the  opposing  ranks,  their  influence  was  gone, 
and  no  further  attention  need  be  bestowed  upon  them. 
The  Whigs,  or  Patriots,  remained  masters  of  the  field, 


86       THE  ARTICLES    OF  CONFEDERATION. 

but  there  was  anything  but  unanimity  among  them, 
and  beside  the  conservatives,  who  regarded  the  British 
constitution  purged  of  its  obnoxious  qualities  as  well 
as  of  those  features  which  were  not  adapted  to  a  youth 
ful  and  isolated  people,  as  the  best  model  for  an  angli- 
can  community,  there  were  the  radicals  who  would 
take  advantage  of  the  tabula  rasa  presented  by  the 
revolt,  to  put  the  most  daring  theories  in  practice. 
Although  the  war  repressed  the  formation  of  these 
differing  schools  into  opposing  parties,  it  is  certain, 
that,  during  the  conflict,  thought  was  none  the  less 
busy,  and  it  is  apparent,  that  upon  the  return  of 
peace,  these  schools  would  assert  themselves  more  pos 
itively  than  they  were  then  doing.  Sentiments  had 
been  uttered  in  the  first  enthusiasm  of  rebellion, 
which  were  not  sustained  by  the  sober  second  thought 
of  the  speakers.  The  "brotherhood  of  man"  was  a 
notion  altogether  foreign  to  the  colonists,  and  one 
which  the  young  enthusiasts  of  a  much  later  date 
were  the  only  ones  to  welcome  ;  for  in  1777,  when 
the  plan  of  Confederation  was  first  submitted,  it  is 
very  clear  that  our  ancestors  were  not  ready  for  bro 
therhood  of  any  kind  ;  a  league  of  friendship  was  all 
that  they  would  assent  to,  and  even  to  this  reluctantly. 
The  single  body  representing  the  states  and  the  quali 
fied  union  of  the  colonies  under  Articles  of  Confeder 
ation  were  wrung  from  unwilling  hands,  and  they 
whose  comprehension  of  present  need  and  of  future 
development  led  them  to  advocate  a  positive  union 
which  should  be  manifested  by  a  single  and  responsible 
executive  head,  found  themselves  in  a  woful  minority. 
To  part  with  the  very  powers  which  they  had  taken 
up  arms  to  preserve,  had  not  been  contemplated  by 


THE  FIRST  CONSTITUTION.  87 

them,  and  at  once  the  great  mass  of  public  opinion 
arrayed  itself  in  opposition  to  this  notion. 

The  Articles  of  Confederation  were  presented  to 
the  states  for  ratification  in  1778.  It  had  taken  more 
than  three  years  of  rebellion  and  strife,  three  years  of 
distress  within  and  of  hostility  without,  to  effect  some 
thing  which  after  all  turned  out  to  be  coalition  rather 
than  union.  Even  then  it  was  not  accepted  until  it 
had  danced  attendance  in  the  ante-chambers  of  the 
state  legislatures  for  three  years  longer.  It  is  evident 
that  the  ancient  separateness  of  the  colonies  still  made 
itself  felt  in  the  prevailing  sentiment  of  the  country, 
and  that  the  sanctity  of  the  local  self-governments  and 
the  supremacy  of  the  individual  were  considerations 
against  which  even  destruction  threatening  at  the  hands 
of  their  enemies,  could  not  prevail.  These  were  the 
all  powerful  motives  of  political  conduct,  and  to  these 
must  be  referred  every  constitutional  act  committed 
by  the  new  states.  Twelve  years  afterwards,  when 
parties  assumed  definite  shape,  this  was  the  ground 
upon  which  opposition  to  the  administration  took  its 
stand  ;  for  the  questions  upon  which  the  people 
divided  were,  How  much  power  shall  be  entrusted  to 
the  central  government,  and  to  what  extent  shall  it  be 
endowed  with  the  attributes  of  sovereignty  ?  Is  gov 
ernment  made  for  the  individual,  or  is  the  individual 
made  for  the  government  ?  The  Confederation  proved 
to  be  a  weak  government,  and  great  has  been  the  ob 
loquy  for  being  so,  which  it  has  encountered  at  the 
hands  of  latter-day  publicists.  One  would  suppose  in 
turning  over  the  pages  of  writers  of  to-day,  that  this 
"  First  Constitution  "  was  an  attempt  of  a  parcel  of 
school  boys  at  government-making,  and  that  at  best  it 


88       THE  ARTICLES    OF  CONFEDERATION. 

serves  only  for  an  example  to  be  shunned.  It  should 
be  remembered,  nevertheless,  that  many  o£  the  men 
who  constructed  the  Constitution  of  1788,  had  a  hand, 
directly  or  indirectly,  in  the  Articles  of  Confederation, 
and  it  is  incredible  that  the  skill  manifest  in  the  for 
mer  should  be  the  growth  of  only  half-a-dozen  years. l 
There  is  a  plain  and  substantial  reason  for  the  gov 
ernment  of  the  Confederation  being  a  weak  one,  and 
this  is,  because  it  was  intended  by  its  makers  to  be 
weak. 

Why  was  this  creature  fashioned  without  a  head? 
The  answer  is,  to  prevent  its  becoming  dictatorial. 
Why  a  mere  league,  instead  of  a  union  ?  The  answer 
is,  through  fear  of  a  government  of  full  powers  be 
coming  greater  than  its  creators.  The  framers  of  the 
Articles  of  Confederation  reasoned  after  this  wise : 
No  central  government  can  be  created  without  the 
powers  necessary  to  its  being,  and  as  such  government 
implies  perpetuity,  the  delegation  of  these  powers 
runs  the  risk  of  becoming  a  perpetual  abnegation  of 
them  by  the  states  from  whom  they  must  be  derived. 
Furthermore,  the  tendency  of  central  authority  is  to 
absorb  powers,  and  this,  likewise,  can  occur  only  at 
the  expense  of  the  states,  and  this  absorption  will  pro 
ceed  until  all  the  powers  of  the  creators  are  concentra 
ted  in  the  creature,  and  the  states  be  subjected  to  the 
central  government,  and  thus  will  ensue  the  evil  of 
entrusting  power  to  a  single  hand.  Accordingly  the 
framers  saw  to  it,  that  the  central  government  should 
not  have  capacity  to  absorb  the  states'  powers. 

1  The  Articles  of  Confederation  did  not  receive  the  requisite  rati 
fication  of  all  the  states  until  1781 ;  the  present  Constitution  was  sub 
mitted  to  the  states  in  1787. 


ELIMINATION   OF  "THE  RULER."  89 

A  strong  government  was  an  abomination  in  the  sight 
of  the  members  of  the  Confederation,  and  they  took 
care  that  there  should  not  be  such  a  one.  To  them 
strong  government  meant  weak  people,  and  weak  gov 
ernment  meant  strong  people.  They  had  good  reason 
for  thinking  so,  for  such  was  the  lesson  taught  them 
by  the  annals  of  their  own  race.  To  cite  the  instance 
most  frequently  referred  to  at  the  time  ;  when,  in 
1625,  the  people  of  England  entered  upon  their  con 
test  with  absolutism,  they  were  weak  and  the  ruler 
was  strong,  but  when  they  emerged  from  the  struggle, 
in  1688,  the  ruler  was  weak  and  the  people  were 
strong.  This  lesson  was  not  lost  upon  the  men  who 
were  now  in  the  third  year  of  a  like  contest,  and  they 
shrank  from  stultifying  themselves  in  their  first  essay 
at  government,  by  creating  the  very  thing  against 
which  they  were  then  in  arms,  viz  :  too  strong  a  cen 
tral  government.  Therefore,  with  their  eyes  open  and 
with  a  full  comprehension  of  what  they  were  doing, 
they  made  their  central  government  a  weak  one.  They 
were  determined  to  eliminate,  as  far  as  in  them  lay, 
the  notion  of  "  rule  "  from  government  in  the  United 
States,  and  to  show  that  in  the  system  of  their  creating 
there  was  no  place  for  a  "  ruler."  Had  the  Articles 
of  Confederation  no  other  claim  upon  our  consider 
ation,  this  should  render  them  imperishable. 

With  the  return  of  peace,  this  "  government  of 
supplication  "  proved  inadequate  to  the  task  of  restor 
ing  prosperity  and  of  enforcing  respect  at  home  and 
abroad.  The  framers  of  the  Articles  had  overdone 
their  work ;  they  had  made  the  government  too  weak, 
and  speedily  it  became  obvious,  that  the  sustaining 
vigor  which  had  been  imparted  by  the  war  spirit, 


90        THE  ARTICLES   OF  CONFEDERATION. 

must  now  be  drawn  from  other  sources.  Whence 
could  it  be  derived  except  from  the  powers  of  the 
states  ?  Nevertheless,  to  show  that  the  failure  of 
the  Confederation  was  not  deemed  to  have  impugned 
the  principle  which  had  regulated  its  creation,  and 
that  the  abhorrence  of  strong  governments  should  pre 
vail  over  other  considerations,  the  resolution  to  convoke 
the  constitutional  Convention  made  no  mention  of  a 
new  Constitution,  nor  did  it  refer  to  any  other  than 
the  one  already  existing,  but  provided  for  the  revision 
and  alteration  merely  of  the  Articles  themselves.  Thus, 
with  failure  upon  their  hands,  the  states  could  not  bring 
themselves  to  the  point  of  creating  a  strong  or  "  ruler  " 
government,  but  were  willing  to  accept  improvement 
only  of  that  which  they  then  had.  The  Convention, 
however,  turned  its  back  upon  the  limitations  set  by 
Congress,  and  gave  to  the  country  an  altogether  new 
and  different  instrument.  This  arrogation  of  powers 
came  near  causing  the  rejection  of  the  present  Consti 
tution. 

Such  was  the  political  reason  for  this  inefficient 
government ;  there  is,  furthermore,  a  historical  reason 
for  making  it  a  mere  league.  Never  had  there  been 
a  form  of  government  which  united  in  a  completely 
developed  system  the  state  and  national  elements. 
Our  ancestors,  therefore,  had  no  such  example  before 
them,  and  never  before  had  they  reached  the  stage 
where  such  a  form  was  to  be  evolved  as  a  natural  pro 
duct  of  their  conditions.  They  had  no  other  models 
than  the  numerous  leagues  and  confederations  of  for 
eign  or  of  ancient  states.  Their  aversion  to  entrust 
ing  power  in  a  single  hand,  whether  it  were  the  hand 
of  a  person  or  of  a  corporation,  forbade  their  adopt- 


NEW  ENGLAND   CONFEDERATION.  91 

ing  any  of  the  examples  of  modern  confederation,  and 
disposed  them  to  regard  more  favorably  the  leagues  or 
confederations  of  ancient  times.  There  had  been,  how 
ever,  an  instance  of  confederation,  imperfect  though  it 
was,  among  a  portion  of  these  very  colonies,  which  was 
not  without  its  effect.  The  New  England  Confedera 
tion  of  1643  had  fairly  subserved  the  purposes  of  its 
organization,  and  had  lasted  for  nearly  two  genera 
tions  ;  and  this,  though  destitute  of  mandatory  power, 
and  without  an  executive  chief  or  headship.  Why, 
then,  should  not  the  purposes  of  the  new  states  be 
accomplished  by  a  like  combination  ?  The  foremost 
duty  of  the  moment  was  the  successful  conduct  of  the 
war  :  this  war  had  been  conducted  so  far  with  reason 
able  success  by  a  Congress,  or  Committee  of  Public 
Safety :  if  a  Congress  without  ascertained  and  de 
fined  powers  could  do  so  well,  a  Congress  with  such 
powers  could  do  still  better  :  a  bridge  over  the  troubles 
of  the  present  was  all  that  was  needed,  and  such  a 
bridge  would  a  confederation  without  headship  be. 

The  Articles  of  Confederation,  manifestly,  were  the 
outcome  of  civil  commotion  and  confusion.  The  Con 
gress  had  been  acting  the  part  of  a  Committee  of 
Public  Safety,  and,  accepting  it  as  it  stood,  the  Arti 
cles  merely  constitutionalized  its  action.  The  experi 
ence  of  several  years  of  warfare  had  shown  what 
course  was  to  be  pursued,  what  needs  should  be  re 
lieved,  and  what  purposes  subserved.  The  Congress 
was  a  body  which  had  long  outlasted  the  period  it  was 
intended  to  endure,  and  the  recollection  of  a  Long 
Parliament  was  an  ever  present  one.  A  revolutionary 
body  exercising  governmental  functions,  might,  by  the 
provocation  of  circumstances,  if  not  by  the  mere  force 


92       THE  ARTICLES   OF  CONFEDERATION. 

of  time,  arrogate  to  itself  power  which  would  disdain 
the  acquiescence  of  its  creators  to  establish  its  validity ; 
and  the  feeling  grew  that  it  was  high  time  to  place 
constitutional  limitations  upon  a  servant  capable  of 
becoming  greater  than  the  master,  and  high  time  to 
define  constitutionally  the  limits  of  the  union  de  facto 
which  already  existed.  Accordingly,  Articles  of  Con 
federation  were  proposed,  and,  after  a  delay  which 
brought  the  war  almost  to  the  closing  scenes  of  active 
operations,  they  were  adopted.  Congress  was  not  so 
much  empowered,  as  it  was  recognized ;  that  is,  a  ter 
mination  was  put  to  its  existence  as  a  revolutionary 
body  or  Committee  of  Safety,  and  henceforth  its  pro 
ceedings  were  to  be  invested  with  constitutionality. 
It  had  been  exercising  governmental  functions  all 
along,  it  is  true ;  but,  while  powers  were  now  solemnly 
conferred,  they  were  also  definitely  ascertained  and  de 
scribed,  and,  by  the  same  instrument,  the  retention  of 
undelegated  powers  in  the  states  and  the  limitation  of 
the  delegate's  term  to  one  year,  afforded  security 
against  abuse  of  authority.  A  more  cautious,  sus 
picious,  grudging  compact  was  never  penned.  How 
ever  prodigal  the  colonists  might  be  of  their  blood, 
they  were  miserly  of  their  powers :  and  justly  so,  for 
the  lessons  of  history  were  so  many  warnings  against 
free  peoples  parting  with  their  independence ;  and, 
certainly,  if  ever  there  is  a  period  of  weakness  when 
advantage  can  be  taken,  it  is  in  the  moment  of  trans 
formation,  when  putting  off  an  ancient  character  they 
are  not  yet  invested  with  the  new. 

One  great  advance  in  the  jurisdiction  of  Congress 
was  made  by  the  Articles  of  Confederation :  it  be 
came  a  legislative  body,  so  far  as  the  subjects  allotted 


CONGRESS   CONSTITUTIONALIZED.          93 

to  it  were  concerned.  As  to  these  matters,  it  could 
pass  ordinances ;  but  as  to  those  not  submitted  ex 
pressly  to  its  action,  it  remained  deliberative  and  ad 
visory,  and  it  could  resolve  and  recommend  only,  but 
not  enact.  Thus,  its  legislative  power  was  yet  incom 
plete  and  restricted ;  1  and  it  is  a  striking  illustration 
how  feeble  was  the  influence  of  the  Articles  of  Con 
federation,  and  how  little  they  contributed  to  repre 
sentative  government  and  to  the  transformation  of 
union  from  a  sentiment  into  a  governmental  force,  that 
the  war  was  virtually  fought,  treaties  made,  and  con 
federation  organized,  without  them.  This  of  itself 
shows,  that  the  union  which  carried  the  states  through 
the  war,  was  not  political  union,  but  was  mere  cohe 
sion  induced  by  the  coercive  pressure  of  hostile  forces. 
The  successful  result  of  the  revolt  may  be  pointed  to 
in  support  of  the  conclusion,  that  the  government, 
under  the  Articles  of  Confederation,  must  have  been 
reasonably  complete,  inasmuch  as,  through  its  direc- 

1  Hildreth  says,  vol.  iii,  402 :  "  Instead  of  increasing  the  authority 
of  Congress,  the  Articles  of  Confederation  tended  rather  to  limit  it. 
Sessions  for  the  future  were  to  be  annual ;  the  delegates  to  be  ap 
pointed  for  a  year,  but  liable  at  any  time  to  be  recalled,  and  incapa 
citated  to  serve  more  than  three  years  in  six,  or  to  hold  any  federal 
office  of  emolument.  On  all  important  points,  the  assent  of  nine 
states  was  required.  What  added  to  the  embarrassment,  and  proved 
a  serious  detriment  to  the  dispatch  of  business,  no  state  was  to  be 
considered  as  voting  unless  represented  by  at  least  two  delegates.  In 
relation  to  peace  and  war,  Congress  possessed,  under  the  Articles  of 
Confederation,  most  of  the  powers  now  exercised  by  the  federal  gov 
ernment,  but  without  any  means  of  raising  a  revenue  independently 
of  state  action  except  by  paper  issues  and  loans.  .  .  .  Congress 
might  make  requisitions  on  the  states ;  but  as  it  had  no  means  to  en 
force  them,  the  oftener  they  were  made  the  less  they  were  heeded. 
The  only  substantial  addition  made  by  the  Articles  of  Confederation 
to  the  powers  of  Congress,  consisted  in  the  authority  .to  pass  ordi 
nances  on  the  subjects  within  its  control." 


94       THE  ARTICLES   OF  CONFEDERATION. 

tion,  our  institutions  survived  with  remarkable  in 
tegrity  the  convulsions  of  civil  war.  But,  the  fact  is, 
that  Congress,  which  was  almost  the  only  subject  of 
the  Articles,  had  little  more  to  do  with  the  political 
than  it  had  with  the  social  institutions  of  the  country. 
Like  all  revolutionary  bodies,  its  immediate  concern 
was  the  progress  of  the  strife,  and  it  accomplished  its 
purpose,  which  was  a  specific  one,  and  one  which  was 
obviously  extraneous  to  the  inner  political  life  of  the 
colonies.  This  Confederation  had  nothing  to  do  with 
the  internal  administration  of  the  colonies :  colonial 
life  had  gone  on  uninterruptedly  before  it  was  ever 
heard  of,  and  went  on  regularly  during  its  existence, 
and  as  the  Assemblies,  though  disturbed,  were  not  im 
paired  by  the  military  operations,  they  survived  in 
entirety.1  The  Confederation  had  no  direct  action 
upon  the  colonies  and  represented  nothing  that  had. 
The  war,  on  the  part  of  the  colonies,  was  waged  prin 
cipally  to  preserve  these  local  governments,  and  the 
office  of  the  federal  government  was  to  stand  between 
them  and  their  foes.  This  it  did  ;  the  Assemblies  con 
sequently  preserved  their  integrity,  and,  had  the  war 
terminated  adversely,  would  have  emerged  from  it  in 
much  the  same  condition  as  they  did  when  it  termi 
nated  favorably.  The  vitality  of  colonial  life  lay  in 
the  different  peoples  and  was  expressed  through  their 
local  Assemblies:  Congress  represented  the  external 
action  and  the  defensive  force  of  these  combined  peo- 

1  During  the  whole  war  the  British  were  unable  to  erect  and  sus 
tain  any  civil  government  whatever :  the  colonial  assemblies  main 
tained  possession  of  the  field  without  effort.  For  consequences  of 
this,  from  a  military  point  of  view,  see  paper  drawn  up  by  Benedict 
Arnold  for  the  information  of  the  king,  in  1782.  Arnold's  Life  of 
Benedict  Arnold,  Appendix,  421. 


VITALITY  OF  LOCAL   GOVERNMENTS.        95 

pies.1  It  must  not  be  forgotten,  that  the  war  was 
more  than  half  over  and  the  most  important  part  of 
the  work  of  achieving  independence  accomplished,  be 
fore  the  Confederate  government  had  any  existence. 
Inasmuch  as  most  of  the  states  had  signed  the  Arti 
cles  when  presented  to  them,  and  the  expectation  was 
general  that  those  declining  to  do  so  would  eventually 
give  in  their  adhesion,  they  doubtless  afforded  a 
standard  by  which  Congress  regulated  its  action  :  but 
this  is  presumptive  only,  not  historical,  and  the  fact 
remains,  that  as,  to  be  valid,  the  signatures  of  all  the 
states  were  required,  so  long  as  any  of  these  declined 
to  sign,  the  Articles  were  not  a  constitution,  and  the 
federal  government  was  not  a  body  politic.  The 
necessity  of  acceding  to  the  Articles  could  not  be  very 
pressing  upon  states  whose  leisurely  action  is  shown 
by  one  of  them  not  signing  until  1779,  another  until 
1780,  and  the  last  not  until  1781 :  yet,  all  this  time, 
the  local  governments  pursued  their  natural  course, 
and,  hence,  it  is  evident,  that  the  unimpaired  vitality 
of  these  governments  was  not  dependent  upon  so  tardy 
and  so  inchoate  an  instrument  as  the  Articles  of  Con 
federation.2 

"  The  powers  delegated  by  the  proposed  constitution  to  the  fed 
eral  government,  are  few  and  defined.  Those  which  are  to  remain  in 
the  state  governments,  are  numerous  and  indefinite.  The  former  will 
be  exercised  principally  on  external  objects,  as  war,  peace,  negotiation 
and  foreign  commerce.  The  powers  reserved  to  the  several  states 
will  extend  to  all  the  objects,  which,  in  the  ordinary  course  of  affairs, 
concern  the  lives,  liberties  and  properties  of  the  people ;  and  the 
internal  order,  improvement,  and  prosperity  of  the  state."  The 
Federalist,  XLV  (Madison). 

"  The  state  governments  may  be  regarded  as  constituent  and 
essential  parts  of  the  federal  government ;  whilst  the  latter  is  nowise 
essential  to  the  operation  or  organization  of  the  former."  The 
Federalist,  XLV  (Madison). 


96       THE  ARTICLES   OF  CONFEDERATION. 

The  American  Revolution  had  little  of  the  character 
of  a  civil  war.  It  was  really  waged  against  a  distant 
and  external  power,  and  for  nothing  that  was  before 
the  eyes  and  could  be  seen,  but  for  the  preservation 
of  a  principle  or  set  of  principles.  The  colonial  gov 
ernments,  in  the  course  of  time,  had  grown  to  be  so 
republican,  that  the  repudiation  of  monarchy  had 
little  effect  upon  them :  they  remained,  in  principle,  as 
they  had  been  before.1  So  with  the  social  constitu 
tion  :  there  were  no  classes  to  be  uprooted,  banished, 
or  slaughtered,  no  local  institutions  to  change,  none  to 
destroy.  There  was  nothing  which  war-for-preserva- 
tion-of-principle  could  affect,  and,  consequently,  when 
the  storm  had  passed  over,  the  local  governments  and 
society  emerged  unscathed,  and  more  fresh  and  vigor 
ous  than  ever.  Unless  it  was  to  adapt  old  forms  to 
novel  conditions,  or  to  paint  an  eagle  in  the  place  of  a 
crown  over  the  Speaker's  chair,  or  to  write  the  word 
"people  "  instead  of  "king,"  there  was  really  nothing 
to  be  done  in  any  of  the  state  capitals.  Why  should 
there  be  ?  What  changes  of  political  constitution  had 
there  been  ?  None  that  were  vital :  the  war  had  been 
fought  to  prevent  change  and  to  preserve  integrity, 
and,  these  ends  effected,  there  was  nothing  to  memo 
rialize,  nothing  to  commemorate.2 

Down  to  the  time,  then,  that  we  became  an  inde 
pendent  power,  separateness  of  colonial  constitution, 
restricted  intercourse  between  the  colonies,  and  espe- 

1  See  note  2,  antea,  pp.  48,  49. 

"  The  Revolution  of  1776  did  not  subvert  government  in  all  its 
forms.  It  did  not  subvert  local  laws  and  local  administrations." 
Webster,  Works,  iii,  460. 


COMMON  RESPONSIBILITY.  97 

cially  the  relegation  of  every  element  of  political  life 
that  smacked  of  sovereignty,  to  the  control  of  a  cen 
tral  and  distant  power,  prevented  community  of  senti 
ment  or  even  effective  concert  of  action.  Massachu 
setts  could  not  be  influenced  by  the  social  constitution 
of  Virginia,  where  all  were  either  owners  or  owned, 
and  therefore  Massachusetts  took  no  interest  in  Vir 
ginia.  She  was  not  accountable  in  any  way  for 
Virginia's  social  structure  or  for  her  political  acts :  to 
the  king  in  Privy  Council  alone  belonged  the  right  of 
interference.  As  the  colonies  were  not  united  but 
were  separate,  there  could  be  no  one  people  common 
to  them,  and,  therefore,  the  inhabitants  of  each  con 
stituted  a  people  by  themselves.  It  is  plain,  too,  that, 
there  being  no  union,  there  was  no  common  ground 
upon  which  all  the  sisterhood  could  stand  as  one,  nor 
any  upon  which  repugnant  colonies  could  interfere 
with  each  other.  It  was  a  political  impossibility, 
therefore,  for  colonies  of  different  notions  and  habits 
to  intermeddle,  and  there  was  little  incentive  for  con 
flicting  ideas  to  express  themselves,  and  less  oppor 
tunity  for  one  set  of  notions  to  assert  itself  at  the 
expense  of  another.  With  the  union  of  the  colonies, 
incomplete  as  it  was,  under  a  central  and  common  gov 
ernment  created  by  themselves  and  existing  on  their 
own  soil,  all  this  was  changed.  The  sense  of  restraint 
by  a  superior  was  gone.  It  is  not  enough  to  say,  that, 
under  the  new  order  of  things,  that  which  affected  one 
colony  affected  all ;  we  must  go  further,  and  recognize 
as  the  most  positive  result  of  union,  that  what  was  the 
political  and  social  constitution  of  one  colony  affected 
vitally  all  the  rest.1  Be  the  union  what  it  may,  com- 

"  Who  can  predict,  what  effect  a  despotism,  established  in  Massa- 


98       THE  ARTICLES   OF  CONFEDERATION. 

plete  or  incomplete,  one  of  original  or  of  delegated 
powers,  a  federation  or  a  consolidation,  the  constitu 
tion  of  a  single  element  of  the  body  affected  all  the 
other  elements,  morally  if  not  politically.  All  the 
diverse  interests  now  held  relation  to  the  common  weal ; 
they  now  had  a  common  ground  whereon  to  meet,  and 
for  many  such  interests,  indeed,  there  was  no  other 
field  of  action.  The  accessibility  of  this  central  gov 
ernment  invited  reciprocal  criticism,  rivalry,  and  inter 
ference,  and  thus  an  ever  present  incentive  to  discord 
rose  among  the  states.1 

It  is  the  perfect  comprehension  of  the  changed  con 
dition  of  their  political  relations  to  each  other,  that 
explains  the  creation  of  so  weak  and  futile  a  power 
as  the  one  which  had  for  its  constitution  the  Articles 
of  Confederation.  Men  were  reluctant  to  hazard  the 
real  independence  they  had  enjoyed  as  colonists ;  for 
more  benign  relations  never  existed  than  were  those 
which  had  been  maintained  for  generations  between 
the  crown  and  the  American  colonies.  It  cannot  be 
too  often  insisted  upon,  that  the  colonists  took  up  arms 
against  the  mother-country,  not  to  gain  more  than 
they  already  had,  for  their  political  condition  was  al 
most  Utopian,  but,  to  preserve  what  they  already  had. 
Nay,  they  hardly  hoped  so  much,  for  the  books  are 
full  of  the  utterances  of  the  leaders  in  rebellion,  all 
going  to  show  that  they  had  no  expectation  of  the 
future  being  a  continuation  of  the  happy  past  known 

chusetts,  would  have  upon  the  liberties  of  New  Hampshire  or  Rhode 
Island;  of  Connecticut  or  New  York?"  The  Federalist,  XXI 
(Hamilton). 

1  For  condition  of  the  country  after  the  war,  resulting-  from  the 
impotence  of  the  general  government,  see  Marshall's  Life  of  Wash 
ington,  vol.  ii,  chap.  iv.  The  Federalist,  XV. 


REPUGNANCE   TO   UNITY.  99 

to  them  and  their  fathers.  The  Grenville,  Townshend, 
and  Lord  North  administrations  had  brought  them  re 
luctantly  to  the  conclusion,  that  this  well-nigh  ideal 
condition  was  gone  forever,  and  that  the  future  was  to 
be  as  dark  as  the  past  had  been  bright.  To  save  what 
they  could  of  this  free  life,  was  the  motive  of  their 
rebellion.  This  successfully  accomplished,  they  had 
to  face  the  necessity  of  creating  a  central  power. 
But,  if  the  ancient  royal  authority,  with  its  might 
and  orderly  administration,  had  failed  them,  what  was 
to  be  expected  of  a  novel  and  feeble  creature  of  no 
higher  origin  than  themselves,  and  without  the  impos 
ing  effect  of  tradition  and  history?  If  the  ties  of 
blood  had  failed  to  keep  mother  and  child  together, 
would  they  hold  brethren  to  each  other?  If  conflict 
ing  commercial  interests  had  brought  upon  them  the 
hostility  of  the  home  government,  would  they  not  like 
wise  place  the  weak  states  at  the  mercy  of  the  strong  ? 
Did  not  the  ancient  local  prejudices  which  had  been 
harmless  from  want  of  a  common  field  of  action,  and 
the  diversity  of  social  constitution,  hitherto  unfelt, 
now  offer  new  motives  of  dissension  ?  Community  of 
interest  was  the  only  tie,  yet  community  of  interest 
was  defined  and  restricted,  while  contrariety  of  inter 
est  was  undefined  and  limitless.  Indeed,  one  element 
of  community  of  interest,  and  the  most  powerful  one, 
would  be  eliminated  by  the  very  achievement  of  inde 
pendence  —  they  would  no  longer  be  bound  together 
by  the  coercive  force  of  external  pressure. 

Thus  it  was,  that,  distrustful  of  their  own  ability, 
and  suspicious  of  each  other,  they  dallied  over  the 
work  of  providing  a  federal  constitution,  and  that, 
when  completed,  they  afforded  the  spectacle  of  a  gov- 


100     THE  ARTICLES    OF  CONFEDERATION. 

ernment,  if  such  it  may  be  styled,  without  a  perma 
nent  head,  the  executive  functions  being  feebly  per 
formed  by  a  committee ;  of  a  Congress  consisting,  of 
a  single  house,  for  there  was  not  even  a  council ;  and 
of  a  judiciary  without  a  bench  of  judges.  There  was 
no  general  power  to  lay  or  to  compel  the  payment  of 
taxes,  to  collect  revenue,  to  raise  troops,  or  to  build  a 
lighthouse.  The  states  retained  in  reality  every  direct 
administrative  function,  for  it  was  in  the  power  of  a 
small  minority  to  block  the  wheels  of  government 
itself.1  Congress  was  neither  simply  executive,  legis 
lative,  or  judicial,  but  an  inchoate  and  confused  com 
position  of  these  three  governmental  elements.  It 
need  hardly  be  said,  that  it  augmented  rather  than 
diminished  the  confusion  of  revolutionary  times ;  and 
that  success  resulted  in  spite  of,  rather  than  by  reason 
of  it.  The  explanation  of  this  abortive  production,  is 
partly  to  be  found  in  the  jealousy  which  shrank  from 
lending  to  any  one  member  of  the  federation  the  pre 
ponderating  influence  which  might  be  derived  from 
the  fact  of  the  executive  being  chosen  from  it,  and  in 
the  dread  each  had  of  weakening  itself  by  undue  con 
tributions  of  men  and  material.  The  small  colonies 
feared  the  great,  who,  in  turn,  were  jealous  of  each 
other,  and  thus  ensued  an  organization  which  lias  been 
well  denominated  a  rope  of  sand.  It  is  evident,  that 

"  Congress,  from  the  non-attendance  of  a  few  states,  has  been 
frequently  in  the  situation  of  a  Polish  diet,  where  a  single  veto  has 
been  sufficient  to  put  a  stop  to  all  their  movements."  The  Fed 
eralist,  XXII  (Hamilton). 

Where  states  failed  to  comply  with  the  requisition,  they  could  un 
doubtedly  be  compelled  to  do  so  by  the  other  members  of  the  Con 
federation,  according-  to  the  laws  of  nations :  but  it  is  very  evident, 
that  the  mere  application  of  force  would  end  in  the  dissolution  of  the 
Confederation,  and  that  the  remedy  would  defeat  itself. 


THE   GOVERNMENT   OF  SUPPLICATION.     101 

the  sentiment  of  union  was  not  yet  strong  enough  to 
overcome  the  ancient  condition  of  separateness,  and 
that  the  notion  of  nationality  had  no  allurements  per 
suasive  enough  to  effect  relinquishment  of  powers. 
Sooner  than  remedy  these  evils  by  the  creation  of  a 
central  government  at  the  expense  of  rights  and  fran 
chises,  the  states  endured  them  for  eleven  years,  before 
coming  together  not  to  create  a  new  power  but  to 
reform  the  old  one.1 

"  The  great  and  radical  vice,  in  the  construction  of 
the  Confederation,"  says  Hamilton,2  "  is  in  the  prin 
ciple  of  legislation  for  states  or  governments,  in  their 
corporate  or  collective  capacities,  and  as  contradis 
tinguished  from  the  individuals  of  whom  they  con 
sist."  In  other  words,  the  defect  of  government 
under  the  Articles  of  Confederation  was,  that  it  was 
a  mere  league  of  states,  and  that  it  exercised  no  direct 
action  upon  the  citizen.  Though  this  principle,  which 
he  styles  the  parent  of  anarchy,  does  not  run  through 
all  the  powers  delegated  to  the  Union ;  yet  it  pervades 
and  governs  those  on  which  the  efficacy  of  the  rest  de 
pends.  We  have  already  clearly  seen,  however,  that 
such  government  was  not  the  result  of  ignorance  so 
much  as  it  was  of  intention ;  the  notion  of  any  gov 
ernment  requiring  cession  of  powers  being  repugnant 
to  the  states,3  and  a  mere  league  being  the  utmost  to 
which  they  were  disposed  to  assent.  What  he  means, 

"  This  government  of  supplication  cried  aloud  for  its  own  re 
form."  Randolph,  Atty.  Gfenl..  arg.,  Chisholm  v.  Georgia,  2  Dallas, 
423. 

2  The  Federalist,  XV. 

"  They  [the  states]  have  a  mortal  reluctance  to  divest  themselves 
of  the  smallest  attribute  of  independent  separate  sovereignties." 
Humphries  to  Washington,  Jan.  20,  1787. 


102     THE  ARTICLES   OF  CONFEDERATION. 

then,  by  "  the  great  and  radical  vice,"  is,  that  a  league 
was  a  form  of  government  inadequate  to  the  changed 
conditions  of  the  new  states.  He  enumerates  its  de 
fects1  as  follows:  1.  The  total  want  of  a  sanction, 
i.  e.  penalty,  to  its  laws ;  whereby  it  resulted,  that  the 
United  States  had  no  power  to  exact  obedience  or 
punish  disobedience  to  their  resolutions,  either  by 
pecuniary  mulcts,  by  a  suspension  or  divestiture  of 
privileges,  or  by  any  other  constitutional  means. 
There  was  no  express  delegation  of  authority  to  them 
to  use  force  against  delinquent  members.  2.  The 
want  of  a  mutual  guaranty  of  the  state  governments ; 
without  which  they  were  bereft  of  assistance  in  re 
pelling  domestic  dangers.  3.  The  principle  of  regu 
lating  the  contributions  of  the  states  to  the  common 
treasury  and  to  the  army  by  quotas ;  whereby  glaring 
inequality  and  extreme  oppression  ensued,  the  system 
of  quotas  and  requisitions,  whether  applied  to  men  or 
money,  being  a  system  of  imbecility  and  of  inequality 
and  injustice.  4.  The  want  of  a  power  to  regulate 
commerce ;  which  operated  as  a  bar  to  the  formation 
of  beneficial  treaties  with  foreign  powers,  and  gave 
occasions  of  dissatisfaction  between  the  states.  5. 
The  interfering  regulations  of  some  of  the  states; 
which  caused  umbrage  and  complaint  to  others.  6. 
The  right  of  casting  the  vote  of  a  delegation  regard 
less  of  its  numerical  proportion  to  the  others  ;  whereby 
every  idea  of  proportion,  and  every  rule  of  fair  repre 
sentation,  was  condemned ;  contradiction  given  to  the 
fundamental  maxim  of  republican  government,  which 
requires  that  the  sense  of  the  majority  should  prevail, 
and  opportunity  afforded  to  foreign  corruption  as  well 
i  The  Federalist,  XXI,  XXII. 


LACK   OF  POWERS.  103 

as  to  domestic  faction.  7.  The  want  of  a  judiciary 
power ;  to  avoid  the  confusion  which  unavoidably  re 
sults  from  the  contradictory  decisions  of  a  number  of 
independent  judicatories,  and  this  is  the  more  neces 
sary  where  the  frame  of  government  is  so  compounded, 
that  the  laws  of  the  whole  are  in  danger  of  being  con 
travened  by  the  laws  of  the  parts.  8.  The  organiz 
ation  of  Congress  in  a  single  assembly ;  being  itself 
inadequate  for  the  exercise  of  those  powers  which  are 
necessary  to  be  deposited  in  the  union.  9.  That  the 
Articles  of  Confederation  never  had  a  ratification  by 
the  people,  but  had  rested  on  no  better  foundation 
than  the  consent  of  the  legislatures.  Owing  its  rati 
fication  to  the  law  of  a  state,  it  had  been  contended 
that  the  same  authority  might  repeal  the  law  by  which 
it  had  been  ratified.  However  gross  a  heresy  it  may 
be  to  maintain,  that  a  party  to  a  compact  has  a  right 
to  revoke  that  compact,  the  doctrine  itself  has  had 
respectable  advocates.  The  possibility  of  a  question 
of  this  nature,  proved  the  necessity  of  laying  the 
foundations  of  our  national  government  deeper  than 
in  the  mere  sanction  of  delegated  authority.1 

1  See  also  Madison's  specification  of  "  the  vices  of  the  Political  sys 
tem  of  the  United  States,"  still  further  enlarged  upon  and  in  greater 
detail  than  Hamilton's  enumeration.  Works,  vol.  i,  p.  320  :  and  see 
Edmund  Randolph's  exposition  of  the  weakness  and  lack  of  powers 
of  the  Confederation,  in  convention.  Elliot's  Deb.  i. 


CHAPTER  VI. 

THE   CONSTITUTION. 

The  Constitution  a  necessity  —  It  guarantees  the  integrity  of  the  state 
governments  —  Its  inherent  conservatism  —  In  it  the  sentiment  of 
union  has  become  a  dominating  political  force  —  The  Constitution 
terminates  the  Revolution  and  hands  down  its  gains  —  Federation 
and  popular  representation  —  Apportionment  of  taxation  and  repre 
sentation  ;  a  compromise  between  the  North  and  the  South  —  The 
guaranty  of  a  republican  form  of  government. 

THE  coercive  pressure  which  had  bound  the  new 
states  together,  ceased  with  the  cessation  of  hostilities, 
and  the  general  distress  and  confusion  which  ensued, 
compelled  them  to  betake  themselves  to  the  repulsive 
task  of  creating  a  power  strong  enough  to  enforce  re 
spect  without  and  to  maintain  order  within.  In  the 
absence  of  apposite  examples 1  nothing  could  be  pre 
dicted  of  such  a  power.  They  approached  this  task, 
then,  with  fear  and  trembling,  and  if  there  was  one 
sentiment  common  to  them  all,  it  was,  that  their  ancient 
independence  of  each  other  should  not  be  compromised 
by  undue  contributions  of  rights  and  franchises  or  by 
undue  contributions  of  men  and  material.2  One  thing, 
however,  stared  them  in  the  face ;  the  necessity  of  cre- 

1  See   review  of  historical   illustrations  :   The   Federalist,   XVII, 
XVIII,  XIX,  XX. 

2  ' '  Why  should  we  do  more  in  proportion  than  those  who  are  em 
barked  with  us  in  the  same  political  voyage  ?     Why  should  we  con 
sent  to  bear  more  than  our  proper  share  of  the  common  burthen  ?  " 
The  Federalist,  XV. 


DEMAND  FOR   COMMON  SOVEREIGNTY.     105 

ating  a  substitute  for  the  late  imperial  government, 
for,  under  the  Articles  of  Confederation,  they  had  no 
common  head,  no  common  army,  no  common  judiciary, 
and,  at  last,  no  common  credit.1  Were  it  merely  to 
evoke  and  maintain  internal  order,  the  work  could  be 
performed  by  supplying  the  now  known  defects  of  the 
Articles,  but  it  was  clear,  that  a  union  of  thirteen 
states  required  something  more  than  provisions  for 
domestic  tranquillity.  Such  a  combination  could  not 
exist  without  taking  upon  itself  the  character  of  a 
national  power,  for  it  was  a  mere  question  of  time 
when  the  federation  would  be  regarded  by  the  world 
as  one  of  the  great  powers.  Already  its  advent  had 
involved  treaties  of  alliance  and  of  commerce,  and  it 
was  impossible  to  ignore  the  fact,  that  the  act  of  inde 
pendence,  by  inducing  recognition  of  the  combined 
powers  of  the  colonies,  had  thrown  upon  it  also  the 
responsibilities  inhering  in  any  member  of  the  family 
of  nations.  But,  to  maintain  such  a  character,  re 
quired  the  exercise  of  sovereignty,  and  it  was  neces 
sary,  therefore,  to  invest  the  new  government  with 
sovereign  powers.2  How  uncongenial  the  creation  of 

"  We  may  indeed,  with  propriety,  be  said  to  have  reached  almost 
the  last  stage  of  national  humiliation.  .  .  .  We  have  neither  troops, 
nor  treasury,  nor  government.  .  .  .  We  seem  to  have  abandoned  its 
cause  [that  of  public  credit]  as  desperate  and  irretrievable.  .  .  .  That 
most  useful  kind  which  relates  to  borrowing1  and  lending  [private 
credit],  is  reduced  within  the  narrowest  limits,  and  this  still  more 
from  an  opinion  of  insecurity  than  from  a  scarcity  of  money."  The 
Federalist,  XV  (Hamilton),  which  see  for  description  of  the  country's 
condition  in  1787. 

"  The  ground-work  being  laid,  the  great  objects  which  presented 
themselves  were  :  1.  To  unite  a  proper  energy  in  the  Executive,  and  a 
proper  stability  in  the  Legislative  departments,  with  the  essential 
characters  of  Republican  Government.  2.  To  draw  a  line  of  demarca 
tion  which  would  give  to  the  General  Government  every  power  requi- 


106  THE   CONSTITUTION. 

a  new  power  was  to  men  fresh  from  the  subversion 
of  the  old,  and  how  repugnant  the  substitution  of 
the  unknown  and  untried  for  the  known  and  tried, 
must  be  left  to  the  imagination.  We  have  seen,  that, 
when  the  first  congresses  came  together,  there  was 
nothing  in  the  credentials  of  the  delegates  or  in  their 
action,  that  betrayed  a  suggestion  even  of  the  colonies 
creating  a  new  and  strange  government.  Later  on, 
when,  in  the  rapid  course  of  events,  independence 
assumed  portentous  form,  and  actually  declared  itself, 
there  is  still  nothing  to  indicate  that  the  formation  of 
a  great  power  had  entered  the  minds  of  the  colonists. 
It  is  safe  to  say,  that,  when  the  colonies  resorted  to 
arms,  no  colony  regarded  the  combination  with  its  fel 
lows  as  committing  it  in  any  sense  to  further  con 
junction  after  the  troubles  were  over  ;  redress  of  griev 
ances  was  the  only  object  sought.  The  combination, 
forced  upon  the  new  states  by  outside  pressure,  was  of 
the  barest  prudential  nature,  and  was  merely  a  war 
measure.  As  the  need  of  concert  of  action  became 
more  and  more  apparent,  it  dawned  upon  the  public 
mind,  that,  should  the  independence  lately  declared 
ever  be  established,  some  sort  of  combination  might 

site  for  general  purposes  and  leave  to  the  states  every  power  which 
might  be  most  beneficially  administered  by  them.  8.  To  provide  for 
the  different  interests  of  different  parts  of  the  Union.  4.  To  adjust 
the  clashing  pretensions  of  the  large  and  small  States.  .  .  .  The  due 
partition  of  power  between  the  General  and  local  Governments,  was 
perhaps,  of  all  the  most  nice  and  difficult.  A  few  contended  for  an 
entire  abolition  of  the  States  ;  some  for  indefinite  power  of  Legislation 
in  the  Congress,  with  a  negative  on  the  laws  of  the  States ;  some  for 
such  a  power  without  a  negative  ;  some,  for  a  limited  power  of  legis 
lation,  with  such  a  negative  ;  the  majority,  finally,  for  a  limited  power, 
without  the  negative.  The  question  with  regard  to  the  negative, 
underwent  repeated  discussions,  and  was  finally  rejected  by  a  bare 
majority."  Madison  to  Jefferson,  Oct.  24,  1787. 


DISILLUSIONS   OF  PEACE.  107 

be  advantageous  even  in  times  of  peace ;  a  league  per 
haps,  or  an  Amphyctionic  Council :  but  we  have  posi 
tive  evidence,  in  the  written  words  of  the  Articles  of 
Confederation,  that,  as  late  as  1781,  the  colonies  had 
entertained  no  further  political  connection  than  that 
which  is  contained  in  the  least  responsible  of  all  com 
binations,  "  a  league  of  friendship."  Even  this  slight 
tie  had  been  submitted  to  tardily  and  reluctantly,  and 
had  been  borne  with  a  grace  so  ill,  that  it  was  con 
temptuously  ignored  the  moment  that  peace  brought 
to  the  new  sovereigns  the  exhilarating  sensations  of 
independence. 

But,  though  peace  had  brought  its  illusions,  it  bore, 
too,  its  disillusions.  Primarily  among  these  was  the 
realization,  that,  in  permitting  the  common  govern 
ment,  called  the  Congress,  to  act  for  the  common  ben 
efit,  the  states  had  incurred  responsibility  that  was 
common.  Treaties  in  the  name  of  all  together  had 
been  ratified,  and,  worse  than  this,  indebtedness  con 
tracted  by  all  together,  bound  them  to  foreign  powers 
as  well  as  to  their  own  people.  The  fatal  first  step 
had  been  taken ; l  and  a  colonist,  who,  at  the  outset, 
had  flattered  himself  with  visions  of  complete  inde 
pendence  of  the  world,  and  the  spectacle  of  his  colony, 

1  "Prior  to  the  date  of  the  Constitution,  the  United  States  had,  by 
taking-  a  place  among-  the  nations  of  the  earth,  become  amenable  to 
the  laws  of  nations  ;  and  it  was  their  interest  as  well  as  duty  to  pro 
vide,  that  those  laws  should  be  respected  and  obeyed  ;  in  their  national 
character  and  capacity,  the  United  States  were  responsible  to  foreign 
nations  for  the  conduct  of  each  State,  relative  to  the  laws  of  nations, 
and  the  performance  of  treaties.  .  .  .  While  all  the  States  were  bound 
to  protect  each,  and  the  citizens  of  each,  it  was  highly  proper  and  rea 
sonable,  that  they  should  be  in  a  capacity  not  only  to  cause  justice  to 
be  done  to  each,  and  the  citizens  of  each  ;  but  also  to  cause  justice 
to  be  done  by  each  and  the  citizens  of  each."  Chisholm  v.  Georgia, 
2  Dallas,  474  ;  Jay,  C.  J. 


108  THE   CONSTITUTION. 

not  only  irresponsible  to  a  superior,  but  free  from  en 
tangling  alliances  of  any  sort,  now  realized  that  the 
necessity  of  self-preservation  had  already  betrayed  him 
into  something  more  serious  than  a  temporary  alliance 
or  even  league.  He  had  thrown  off  the  known  for 
the  unknown ;  he  had  turned  his  back  on  the  past, 
only  to  face  a  forbidding  and  menacing  future,  and 
had  severed  himself  from  a  limited  sovereignty  only 
to  incur  subjection  to  one  which  might  prove  despotic. 
The  fears  that  had  prompted  him  to  resist  encroach 
ment  upon  his  self-government,  now  returned  with 
tenfold  force  as  he  fancied  its  very  existence  at  stake. 
As  his  illusions  were  dissipated,  and  the  realization  of 
the  necessity  of  creating  a  central  government  took 
their  place,  one  question  absorbed  his  thoughts :  How 
should  his  state  retain  its  sovereignty,  and  yet  create 
a  central  government  which  should  be  a  body  politic 
and  exercise  sovereign  powers?  History  refused  to 
come  to  his  aid. 

Nevertheless,  he  answered  the  question ; l  the  work 
was  done,  and  done  so  well,  that  it  has  been  a  marvel 
ever  since  then.  The  chief  significance  of  the  Articles 
of  Confederation,  in  the  historical  sense,  is,  as  has 
been  seen,  that,  primarily,  they  represent  a  serious 
and  earnest  effort  to  effect  constitutional  concert  of 
action  between  parties  which  were  constitutionally  sep 
arate  ;  and  next,  that  this  separateness  was  so  strong 
and  stubborn,  that  it  consented  to  yield  but  little 
ground  to  the  necessities  imposed  by  the  combined 

1  The  Constitution  was  presented  to  the  people,  September  17, 1787  : 
the  day  appointed  for  the  meeting  of  this  Convention  was  the  14th  of 
May,  but  such  was  the  dilatoriness,  that  it  was  not  until  the  25th  that 
Washington  took  the  chair  as  President,  and  then  seven  states  only 
had  appeared. 


RESERVATION  OF  POWERS.  109 

forces  of  a  foreign  war  and  of  internal  distraction. 
The  most  striking  feature  of  the  adoption  of  the  pres 
ent  Constitution,  in  the  same  historical  sense,  is,  that 
the  development  of  the  sentiment  of  union  had  suc 
ceeded  in  overcoming  the  ancient  condition  of  sep- 
arateness,  and  the  ancient  repugnance  to  part  with 
powers,1  to  such  an  extent,  that  states  relinquished  to 
an  untried  body  of  their  own  creation,  powers  and 
jurisdictions  for  which  they  had  lately  given  their 
blood,  and  the  exercise  of  which  they  had  denied  to  a 
government  which  was  ancient,  known,  and  which  had 
been  handed  down  to  them  by  their  fathers. 

The  notion,  that,  these  powers  and  jurisdictions 
once  yielded,  the  colonist  submitted  as  to  the  inevi 
table,  and  took  no  more  thought  of  them,  must  not  be 
harbored  for  a  moment.  Nothing  was  further  from 
their  thoughts,  than  that,  in  parting  with  the  exercise 
of  these  rights,  they  were  surrendering  their  property 
in  them.  So  far  from  it,  they  regarded  them  as  sub 
ject  to  the  same  conditions  as  franchises  are  when 
granted  by  a  sovereign,  that  is,  that  though  these 
powers  had  been  delegated  in  perpetuity,  the  exercise 
of  them  was  strictly  subordinate  to  the  object  for  the 

"  Whatever  power  is  deposited  with  the  Union  by  the  people  for 
their  own  necessary  security,  is  so  far  a  curtailing  of  the  power  and 
prerogatives  of  States.  This  is,  as  it  were,  a  self  evident  proposition  : 
at  least,  it  cannot  be  contested."  Chisholm  v.  Georgia,  468  ;  Gushing, 
J.  And :  "  Every  state  in  the  Union,  in  every  instance  where  its  sov 
ereignty  has  not  been  delegated  to  the  United  States,  I  consider  to  be 
as  completely  sovereign,  as  the  United  States  are  in  respect  to  the 
powers  surrendered.  The  United  States  are  sovereign  as  to  all  the 
powers  of  government  actually  surrendered :  each  state  in  the  Union 
is  sovereign  as  to  all  the  powers  reserved.  It  must  necessarily  be  so, 
because  the  United  States  have  no  claim  to  any  authority,  but  such 
as  the  states  have  surrendered  to  them :  of  course  the  part  not  surren 
dered  must  remain  as  it  did  before."  Id.  435,  Iredell,  J. 


110  THE   CONSTITUTION. 

attainment  of  which  they  had  been  parted  with ;  and, 
to  add  meaning  to  this  construction,  as  well  as  to  se 
cure  what  had  not  been  parted  with,  the  assertion  in 
the  Articles  of  Confederation,  that  the  powers  not  ex 
pressly  delegated  were  retained,  is  repeated  in  sub 
stance.  No  one  can  view  the  Constitution  of  the 
United  States,  without  receiving  the  impression,  that 
it  was  the  work  of  men  whose  object  was  not  to  claim 
greater  liberty  than  they  had  all  along  possessed,  but 
to  preserve  as  much  of  this  ancient  liberty  as  they 
could  ;  that  it  was  the  work  of  men  in  whom  tenacity 
of  ancient  institutions  and  of  ancient  individuality 
was  the  most  deeply  rooted  characteristic  belonging  to 
them,  and  that  these  men  strove  to  create  a  power 
whose  first  purpose  was  to  preserve  and  guarantee  the 
undisturbed  existence  of  these  institutions  and  this  in 
dividuality.  In  making  the  constitution,  they  never 
lost  sight  of  the  real,  underlying  ground  of  their  war 
for  independence  ;  the  fact  that  their  liberties  and  in 
stitutions  had  been  lacking  in  the  constitutional  guar 
anty  which  those  of  the  mother-country  had  enjoyed 
since  the  Eevolution  of  1688,  and  that  it  was  essential 
to  their  welfare  that  they  should  possess  such  stable 
safeguards.  It  was  to  secure  this  guaranty ;  it  was  to 
place  their  liberties  on  a  like  constitutional  foundation 
with  those  of  Great  Britain,  that  was  the  main  object 
of  the  war  which  had  been  lately  fought.  In  the  crea 
tion  of  a  central  power,  then,  that  was  to  take  the 
place  of  the  old  one,  of  which  the  king  had  been  the 
exponent,  the  uppermost  thought  was,  first,  to  establish 
this  guaranty  beyond  peradventure,  and,  secondly,  to 
retain,  as  far  as  possible,  the  same  benign  and  mild 
features  which  had  characterized  the  displaced  govern- 


THE  AMENDMENTS.  Ill 

ment.  The  outcry  raised  at  the  omission  of  a  Decla 
ration  of  Rights  1  was  so  speedily  followed  by  the 
amendments  embodying  the  provisions,  that  they  have 
been  regarded  in  the  common  view  as  parts  of  the 
original  instrument,  and  the  objection  thus  made, 
indicates  how  important  the  people  considered  the 
expression  of  such  guaranty.  To  reconcile  the  relin- 
quishment  of  power  with  the  retention  of  sovereignty, 
limitation  of  the  exercise  of  powers  to  the  point  of 
administrative  efficacy,  and  no  further,  was  the  obvious 
course,  and  this  according  with  the  race  reluctance  to 
part  with  franchises,  was  the  mode  adopted.  But,  in 
asmuch  as  the  abolition  of  monarchical  rule  left  the 
colonial  governments  such  as  they  really  ever  had 
been,  republics,  the  republican  principle  prevailed 
against  that  of  substituting  one  king  for  another,  and 
a  republican  form  of  government  was  adopted.  Apart 
from  this  there  was  no  change.  The  colonial  govern 
ments  had  been  pure  exponents  of  anglican  liberty  ; 
pure  exponents  of  anglican  liberty  they  remained 
when  they  became  states,  and  such  they  exist  to-day. 

1  "The  most  considerable  of  the  remaining  objections  is,  that  the 
plan  of  the  convention  contains  no  bill  of  rights.  ...  I  answer,  that 
the  constitution  offered  by  the  convention  contains  a  number  of  such 
provisions  : "  and  refers  to  Art.  I,  section  3,  clause  7 ;  id.,  section  9, 
clause  2  ;  id.,  clause  3  ;  id.,  id.,  clause  7 ;  Art.  Ill,  section  2,  clause  3 ; 
id.,  section  3  ;  id.,  id.,  clause  3  :  "  I  go  further,  and  affirm,  that  bills  of 
rights,  in  the  sense  and  to  the  extent  they  are  contended  for,  are  not 
only  unnecessary  in  the  proposed  constitution,  but  would  even  be 
dangerous.  They  would  contain  various  exceptions  to  powers  not 
granted ;  and  on  this  very  account,  would  afford  a  colorable  pretext 
to  claim  more  than  were  granted."  The  Federalist,  LXXXIV  (Ham 
ilton).  "The  truth  is,  that  the  constitution  is  itself,  in  every  rational 
sense,  and  to  every  useful  purpose,  a  Bill  of  Rights."  Id.  For  Mad 
ison's  view  of  this  particular  omission,  and  of  Declarations  or  Bills  of 
Rights  in  general,  see  his  letter  to  Jefferson,  Oct.  17,  1788.  And  see 
Lee's  reasons,  Elliot's  Deb.  iii,  186  ;  and  others,  id.,  sparsim. 


112  THE   CONSTITUTION. 

The  achievement  of  independence  did  not  alter  one  jot 
or  tittle  of  their  character  in  this  respect.  In  these 
governments  the  world  had  beheld  the  natural,  the 
instinctive  development  of  race  notions  of  personal 
liberty  and  of  government  under  novel  conditions. 
The  adoption  of  the  federal  constitution,  far  from 
changing  or  affecting  their  character,  expressly  guar 
antees  the  integrity  of  these  governments.  In  respect 
to  the  local  governments,  then,  the  federal  constitution 
found  them  anglo-american,left  them  anglo-american, 
and  guarantees,  that  anglo-american,  they,  and  all 
they  represent,  shall  remain. 

A  character  has  sometimes  been  attributed  to  the 
makers  of  this  constitution  which  is  not  sustained  by 
their  work ;  the  character  of  those  whose  boldness 
and  audacity  have  been  crowned  with  success.  No 
thing  is  farther  from  the  truth :  they  did  not  meet  to 
air  new  doctrines,  but  to  embalm  the  old ; 1  they  were 
cautious  to  timidity  about  anything  which  savored  of 
the  novel  in  governmental  principle,  and  their  stormy 
episodes  arose  only  with  the  suspicion,  that,  what  was 
known  and  settled  was  not  finding  its  clear  and  un 
mistakable  expression,  that  old  rights  were  not  having 
their  due,  or  that  too  much  was  required  of  their  local 
self-government.  To  restrict,  not  to  expand  ;  to  bind, 
not  to  dissolve,  was  the  work  in  hand,  and  there  exists 
not  a  crumb  of  comfort,  within  the  four  corners  of  the 
federal  Constitution,  for  the  restless,  vague  democracy 
whose  end  seems  to  be  the  subversion  of  that  which  is. 
The  democracy  which  appears,  was  the  representative 
democracy  of  which  first  the  colonial  and  afterwards 

1  In  fact,  the  Constitution  of  the  United  States  has  proved  a  success 
ful  attempt  to  set  government  to  ancient  landmarks. 


RECOGNITION  OF  DEMOCRACY.          113 

the  state  governments  were  and  have  since  remained 
such  striking  examples,  and  of  which,  from  their  na 
ture  as  immediate  exponents  of  the  different  peoples, 
they  must  be  the  principal  conservators :  all  that  the 
federal  Constitution  did,  was  to  recognize  such  demo 
cracy,  and  to  abide  by  it.  What  representative  gov 
ernment  owes  to  America,  it  owes  more  to  the  thirteen 
colonies  than  to  the  United  States.  In  short,  the  fed 
eral  Constitution  recognizes  a  preexisting  condition  of 
representative  democracy  animate  in  thirteen  states, 
and  conforms  itself  to  its  laws  as  the  creature  na 
turally  subjects  itself  to  its  creator :  it  expresses  this 
principle  in  every  paragraph,1  not  as  a  dogma,  but  as 
every  living  organism  expresses  the  real,  the  very 
principle  of  its  being.  The  word  "  democracy  "  does 
not  occur  in  the  Constitution,  nor  does  any  other  word 
indicative  of  political  principle,  unless  it  be  the  word 
"republican"  which  is  here  expressive  rather  of  the 
form  than  the  principle  of  government.  What  it  as 
serts,  nevertheless,  is,  that  the  sovereignty  resides  in 
the  people,  that  the  states  are  distinct  and  separate 
autonomies,2  and  that  it,  itself,  is  the  work  of  their 
hands. 

1  Even  in  the  provision  for  the  election  of  President  and  Vice-Presi 
dent. 

2  "  There  is  no  doubt  that  the  several  states  of  the  United  States  are 
foreign  to  each  other ;  for,  though  in  the  aggregate  they  form  a  con 
federated  government,  yet  the  several  states  retain  (theoretically),  sic, 
their  individual  sovereignties,  and,  with  respect  to  their  municipal 
regulations,  are  foreign  to  each  other."     Note  to  Buckner  v.  Finley  et 
a/.,  2  Pet.  586,  revised  ed.,  citing  Warder  v.  Arrell,  2  Wash.  (Va.)  298 ; 
Brown  v.  Ferguson,  4  Leigh,  37  ;  Lonsdale  v.  Brown,  4  Wash.  C.  C. 
8(5,  153  ;  2  Pet.  688  ;  Chenowith  v.  Chamberlin,  6  B.  Mon.  60  ;  Duncan 
v.  Course,  3  Const.  R.  (So.  Car.)  100  ;  Cape  Fear  Bank  v.  Stinemetz, 
1  Hill,  44 ;  State  Bank  v.  Hayes,  3  Ind.  400 ;  Warren  v.  Coombs,  20 
Me.  302 ;  Daniel  Neg.  Instr.  sec.  9  ;  Phoanix  Bank  v.  Hussey,  12  Pick. 


114  THE   CONSTITUTION. 

In  this  Constitution,  we  find  the  first  appearance  of 
union  as  a  dominating  political  force  in  the  history 
of  the  United  States ;  and  its  transformation  from  a 
sentiment  into  a  principle  had  been  radical.  First, 
there  existed  separateness  of  the  colonies ;  then,  at  a 
late  period  in  their  annals,  and  stimulated  by  external 
encroachment  upon  colonial  autonomy,  arose  a  senti 
ment  of  union,  which,  however,  was  effective  only  in 
ensuring  concert  of  action,  not  altogether  complete  ; 
then  ensued  a  further  advance  towards  union  under 
the  Articles  of  Confederation,  which,  nevertheless,  did 
not  evince  anything  like  complete  union,  but  rather 
that  the  ancient  separateness  had  yielded  to  the  less 
disjunctive  but  still  intensely  individual  principle  of 
local  self-government,  and,  finally,  under  the  pressure 
of  public  distress  and  the  inefficacy  of  a  government 
without  powers,  such  as  that  of  the  Confederation,  we 
see  a  central  authority  evoked,  which,  for  the  first  time 
exhibited  a  complete  political  union.  The  government 
of  the  United  States,  as  presented  by  the  Constitution, 
displays  complete  development  and  individuality  of  all 
the  governmental  elements,  viz :  the  executive,  legis 
lative,  and  judicial,  and  all  these  acting  in  harmony.1 

483 ;  Carter  v.  Burley,  9  N.  H.  558  ;  Wells  v.  Whitehead,  15  Wend. 
527;  Amner  v.  Clark,  2  Croinp.,  M.  &  R.  468;  Dickens  v.  Beal,  10 
Pet.  572  ;  Bank  of  U.  S.  v.  Daniel,  12  Pet.  32.  Contra  :  Miller  v.  Hack- 
ley,  5  John.  375.  The  foregoing  references,  which  comprise  but  a 
partial  list  of  the  authorities,  not  only  prove  the  states  to  be  foreign 
to  each  other,  where  not  declared  by  the  Constitution  to  be  united, 
but  prove,  likewise,  that  the  several  states  retain  actually,  and  not 
theoretically  only,  their  individual  sovereignties. 

"  The  departments  of  the  government  are  legislative,  executive 
and  judicial.  They  are  coordinate  in  degree  to  the  extent  of  the 
powers  delegated  to  each  of  them.  Each  in  the  exercise  of  its  powers 
is  independent  of  the  others,  but  all  rightfully  done  by  either  is  bind 
ing  upon  the  others."  Dodge  v.  Woolsey,  18  Howard,  347  ;  Mississippi 
v.  Andrew  Johnson,  4  Wallace,  500. 


POPULAR  DISTRUST.  115 

The  approach  to  complete  political  union  had  been 
slow,  reluctant,  and  characterized  by  caution  which 
savored  of  timidity,  and  the  general  joy  at  its  con 
summation  was  more  expressive  of  hope  than  of  con 
fidence.  The  distress  of  the  country  was  become  in 
tolerable,  and  the  Constitution  had  to  content  itself 
with  the  reception  given  to  anything  which  promises 
relief.  Though  its  supporters  were  sufficiently  in  the 
majority  to  secure  its  adoption,  it  met  with  strong  op 
position.  Even  of  those  who  had  taken  part  in  its 
formation,  there  were  men  who  put  little  faith  in  their 
work,  and  who,  to  say  the  least,  were  not  satisfied  with 
it ; 1  and  there  were  vast  numbers  throughout  the  coun 
try,  who  saw  in  it  the  downfall  of  their  fond  and  per 
sistent  hopes  for  the  absolute  individuality  of  their 
states.  These  men  had  fought  in  order  to  render  their 
colonies  independent  of  a  great  power,  and  to  them 
the  Constitution  threatened  renewed  subjection :  at 
best  it  meant  surrender,  not  independence.  All  dis 
trusted  the  giant  they  had  called  into  being,  and  eyed 
askance  their  own  progeny.  It  never  gained  the  full 
confidence  of  the  generation  which  produced  it,  and 
thousands  of  the  men  who  had  borne  the  brunt  of  the 
war  for  independence,  went  down  into  their  graves  be 
lieving  that  they  had  left  behind  them  a  monster, 
whose  avidity  would  not  be  satisfied  until  it  had  swal 
lowed  up  the  last  right  of  the  states,  and  had  effected 
in  itself  consolidation  of  the  local  governments  in  the 
place  of  union.2  It  need  hardly  be  said,  however,  that 

1  Madison   Papers,   iii,    1593,    1594,    1595,    1600,    1601 ;    ii,   1542. 
There  can  be  little  doubt  that,  had  there  been  a  second  Convention, 
it  would   have    rejected   the    present    constitution.      Washington   to 
Chas.  Carter,  Dec.  14,  1787. 

2  For  objections  to  the  Constitution,  see  them  collected  and  com- 


116  THE   CONSTITUTION. 

time  and  experience  wrought  a  change  of  sentiment. 
The  Constitution  won  its  way  into  the  public  con 
fidence  as  familiarity  with  its  scope  and  principles  in 
creased,  and  as  the  beneficence  of  its  operation  became 
manifest,  until,  at  last,  this  confidence  was  supple 
mented  by  general  admiration.  Nevertheless,  the  fears 
of  the  founders  of  our  government  were  prudential 
fears,  and  the  possibility  of  centralization  of  power,  at 
the  expense  of  local  self-government  still  remains  the 
chief  source  of  apprehension  to  the  lover  of  anglican 
liberty. 

The  characteristics  of  colonial  separateness  and 
local  self-government  have  been  dwelt  upon  at  length, 
because,  without  thorough  understanding  of  these 
primitive  and  radical  elements  of  our  constitutional 
existence  it  is  impossible  to  comprehend  or  to  account 
for  the  events  that  flowed  from  them,  or  for  the  growth 
of  the  union  of  which  they  were  the  forerunners. 
The  sources  of  all  political  events  are  to  be  found  in 
constitutional  principles,  and  if  we  are  to  account  for 
union,  disunion,  or  reconstruction,  we  must  seek  their 
causes  in  the  underlying  principles  most  likely  to  pro 
duce  them.  It  is  natural,  then,  that  we  should  study 
the  governing  principles  of  our  ancestors  in  the  days 
of  their  simplicity,  and  turn  our  eyes  upon  their  first 
essays  at  constitution -making  until  we  come  to  the 
Constitutional  Convention  of  1787  and  its  final  result, 
the  Constitution  under  which  we  now  live.  For,  cer 
tainly,  if  the  determining  forces  of  the  Constitution 
are  to  be  found  anywhere,  they  are  to  be  discovered  in 

merited  upon  in  Story's  Constitution,  Book  III,  chap,  ii ;  The  Fed 
eralist,  XXXVIII  (Madison). 


COMPLETION  OF  THE  REVOLUTION.      117 

the  deliberations  and  utterances  of  a  body  called  to 
gether  for  the  express  purpose  of  discussing  and 
enunciating  constitutional  principles.  The  Conven 
tion  of  1787  presents  the  desired  opportunity  in  a 
peculiarly  favorable  aspect,  not  only  from  the  remark 
able  ability  and  character  of  the  men  who  composed 
it,  but  from  the  circumstances  which  called  it  into 
being.  It  completed  the  Revolution  ;  its  purpose  was 
to  hand  down  the  gains  of  this  historical  event,  and  to 
embody  in  the  clauses  of  the  Constitution  the  results 
of  the  political  upheaval  then  terminated,  and  these 
results  were  comprehended  in  the  Union  of  the  States. 
Henceforth  the  people  of  these  states  were  to  refer 
their  political  events  to  this  Revolution,  because  with 
out  it  they  would  not  be  what  they  are,  and  therefore 
everything  occurring  since  that  event,  has  reference  to 
the  charter  which  summarizes  and  directs  the  political 
forces  defined  within  its  corners. 

There  are  several  features  of  the  Constitution  of 
1788,  which  bear  so  forcibly  upon  the  Civil  War  and 
its  results,  that  specific  mention  must  be  made  of 
them. 

We  have  seen  the  condition  of  colonial  separate- 
ness  give  way  to  the  "  federal "  principle  of  the  states. 
This  principle  was  manifested  in  the  Articles  of  Con 
federation,  which  set  forth  a  compact  between  sov 
ereign  states  only,  and  this  constitution,  like  every 
compact  between  equals  who  are  without  appeal  to 
a  higher  power,  rested  solely  on  the  good  faith  of  the 
parties ;  no  compulsory  power  save  that  of  war,  could 
be  invoked  against  delinquents.  There  was  no  pop 
ular  representation,  for  there  was  no  people ;  nor  were 


118  THE   CONSTITUTION. 

there  any  means  by  which  the  general  body  could  act 
upon  individual  citizens.  There  was,  consequently, 
nothing  "  national "  about  this  government,  nor  any 
thing  which  embodied  the  power  of  the  combined  and 
united  peoples  in  respect  to  the  general  purposes  this 
government  was  intended  to  effect. 

When  the  Confederation  had  had  its  day,  the  prin 
ciple  of  "  federalism  "  was  compelled  to  accept  a  yoke 
fellow,  and  it  had  to  act  henceforth  in  conjunction  with 
the  principle  of  "popular  representation."  There 
was  a  conjunction  in  the  same  frame  of  government  of 
the  federal  principle  and  of  the  national  principle,  and 
these  two  principles  were  intended  to  work  for  the 
same  end  —  the  good  of  the  whole  and  the  good  of 
all.  It  is  the  conjunction  of  the  several  states  under 
these  conjoined  principles  which  forms  the  Federal 
Union.  The  term  "  federal "  applies  to  the  conjunc 
tion  of  the  state  sovereignties,  and  the  term  "  Union  " 
applies  to  the  conjunction  of  the  peoples ;  and  in  an 
ethical  view,  the  states  convey  the  notion  of  natural 
growth  and  the  federal  government  that  of  fabrica 
tion.  Thus  the  features  of  the  Union  were,  that  the 
parties  to  it  were  not  only  sovereign  states  and  gov 
ernments,  but  also  that  the  peoples  were  represented 
in  the  general  government  by  citizens  of  their  respec 
tive  states,  chosen  by  themselves  at  the  polls,  and  that 
these  respective  states  had  representation  by  citizens 
chosen  by  the  legislatures  of  the  several  states.  This 
representation  of  the  peoples  was  proportionate  in  the 
House,  and  thus  the  number  of  representatives  varied 
with  the  populations,  while  the  representation  of  the 
states  in  the  Senate,  being  founded  upon  the  equality 
of  the  sovereignties,  was  fixed  and  immutable ;  each 


FEDERATION  AND  NATIONALITY.        119 

state  having  no  more  nor  less  than  two  senators. 
Therefore,  while  the  federal  principle  held  its  own  in 
the  Senate,  as  an  indispensable  principle  of  govern 
ment,  popular  representation,  the  antithesis  of  federal 
ism,  held  sway  in  the  House  of  Representatives,  and 
the  general  legislature  embraced  the  two  elements  of 
states  and  peoples. 

From  the  adoption  of  the  Constitution  to  this  day, 
the  equipoise  of  these  principles  has  been  regarded  as 
constituting  the  highest  condition  of  safety  for  the 
government,  and  it  was  the  irrepressible  conflict  be 
tween  these  principles  that  brought  on  the  Civil  War 
between  the  states. 

The  questions,  what  constituted  an  equitable  ratio 
of  suffrage,  and  how  should  representation  be  appor 
tioned,  were  embarrassing  ones,  and  they  engrossed 
much  of  the  time  of  the  Convention.  The  contest  be 
tween  property  and  persons,  between  values  and  num 
bers,  waxed  warm :  but  whether  slaves  were  to  be  con 
sidered  property  or  persons,  it  was  conceded,  that 
this  general  element  was  to  be  represented  in  Con 
gress.  The  efforts  of  the  Convention  became  concen 
trated  upon  a  combination  of  numbers  and  wealth  as  a 
basis  of  representation  —  "an  expedient  to  prevent  the 
balance  of  power  from  passing  to  the  western  from 
the  Atlantic  states." l  The  objections  to  this,  on  the 
part  of  the  great  slave-holding  states,  were,  that  "  it 
left  the  question  wholly  undetermined  whether  the 
slaves  were  to  be  regarded  as  persons  or  as  property, 
and  therefore  left  that  question  to  be  settled  by  the 
legislature  at  every  revision  of  the  system.  More 
over,  although  this  rule  might  enable  the  Atlantic 
1  Curtis,  i,  409. 


120  THE   CONSTITUTION. 

states  to  retain  the  predominating  influence  in  the 
government  against  the  western  interests,  it  might  also 
enable  the  northern  to  retain  the  control  as  against 
the  southern  states,  after  the  former  had  lost  and  the 
latter  had  gained  a  majority  of  population."  l  Thus 
the  South,  from  Maryland  to  Georgia,  would  be  in  a 
minority  from  the  outset,  and  in  a  minority  whose  in 
fluence  would  become  less  and  less  with  each  recurring 
census. 

The  Convention  was  forced  eventually  to  abandon 
the  task  of  combining  wealth  and  numbers  in  a  basis 
for  representation  and  taxation ;  the  South  insisting 
that  their  slaves  should  be  regarded  as  persons,  and 
the  North  contending  that  they  should  be  regarded  as 
property.  A  compromise  was  at  last  effected  on  the 
principle  of  assuming,  that  representation  should  be 
proportioned  to  direct  taxation  ;  that  an  actual  enum 
eration  of  the  free  inhabitants  and  three-fifths  of  all 
other  persons  (excluding  Indians  not  taxed)  should  be 
periodically  made,  and  that  direct  taxes  should  be  ap 
portioned  among  the  several  states,  according  to  their 
respective  numbers  so  ascertained.2  All  the  southern 
states,  except  South  Carolina,  voted  for  this  basis  of 
taxation  and  of  the  House  of  Representatives. 

It  was  not  the  first  time  that  this  question  had 
come  before  the  country.  In  1776  it  was  discussed 
in  relation  to  the  quotas  of  contribution  prescribed  in 
the  Articles  of  Confederation,  and  in  that  instance, 
the  North  insisted,  as  it  did  in  this  one,  that  slaves 
should  not  be  a  subject  of  federal  taxation ;  a  position 
which  was  resisted  by  the  South,  on  the  ground  that 
this  left  the  North  to  be  taxed  on  numbers  only,  while 

1  Id. :  id.  2  Article  i,  sec.  2. 


REPRESENTATION  OF  SLAVES.  121 

the  South  would  be  taxed  on  numbers  and  wealth  con 
jointly,  inasmuch  as  slaves  were  property  as  well  as 
persons.  The  inability  to  come  to  a  satisfactory  ad 
justment,  drove  the  Congress  of  1776  to  adopt  land  as 
a  measure  of  wealth  —  a  measure  which  was  found  to 
be  impracticable,  and  in  1783  Congress  reverted  to  the 
basis  of  numbers,  and  it  was  then  that  the  proportion 
of  three-fifths  was  established  for  the  slave  population.1 

Thus,  the  very  first  efforts  of  the  newly-born  states 
to  unite,  were  met  by  the  question  :  What  is  to  be 
done  with  the  slave  ?  It  is  true,  that  what  is  now 
known  as  "  the  slavery  question  "  did  not  then  appear, 
for  the  question,  What  shall  be  done  with  the  slave  ? 
was  general,  not  sectional  (slavery  then  prevailing 
throughout  the  country),  and  it  was  purely  political, 
for  it  related  to  representation  and  taxation  only,  the 
ethics  of  the  question  having  no  place  in  a  contest  in 
which  each  side  was  striving  in  order  that  it  should 
not  be  overreached  by  the  other.  Nevertheless,  this 
question  was  full  of  gravity,  and  no  one  can  peruse 
the  remarks  of  Eandolph  and  of  Mason  in  the  Con 
vention  without  seeing  how  alive  Virginia  was  to  its 
bearings  on  her  future.  It  is  apparent  that,  even 
then,  the  South  regarded  the  North  as  the  growing 
section  of  the  country ;  that  she  looked  upon  herself 
as  destined  to  be  passed  in  the  race,  and  that  she  was 
then  concerned  more  about  guarantees  for  the  future, 
than  about  the  gains  of  the  present. 

This  basis  of  popular  representation  and  of  taxa 
tion  was  a  compromise  between  the  North  and  the 
South,  and  this  equality  of  state  representation  and 

1  Curtis,  415 ;  Madison's  notes,  Elliot,  v,  78-80,  81,  82 ;  Journals 
of  Congress,  viii,  188. 


122  THE  CONSTITUTION. 

vote  in  the  Senate,  was  a  compromise  between  the 
small  and  the  great  states  and  between  the  national 
and  federal  parties  in  the  Convention.  The  latter 
compromise  has  been  styled  "  the  great  compromise." 
The  Constitution  itself  has  been  considered  as  a  com 
promise  between  sections  and  interests,  and  indeed 
the  spirit  of  compromise  throughout  it  is  evident. 
Concession  had  to  be  made  on  all  sides  and  by  all 
parties  before  it  was  reduced  to  its  present  form. 

There  is  a  word  in  the  Constitution  of  1788  which 
is  not  to  be  found  in  the  Articles  of  Confederation ;  it 
is  the  word  "  republican,"  and  it  occurs  in  Article  IV, 
section  4,  where  it  is  said  that,  "  the  United  States 
shall  guarantee  to  every  state  in  this  Union  a  repub 
lican  form  of  government."  What  was  the  notion  of 
a  republican  form  of  government  entertained  by  the 
makers  of  the  Constitution  ?  The  answer  is,  that,  in 
reference  to  the  Constitution  solely,  it  was  the  form  of 
government  then  prevailing  in  the  thirteen  states : 
that  is  to  say,  a  government  consisting  of  an  execu 
tive,  a  representative-legislative,  and  a  judicial  branch, 
each  distinct  from  the  other  branches,  and  one,  the 
judicial,  independent  of  them:  and  a  government 
which  rested  upon  the  principle,  that  it  derived  its 
powers  from  the  governed,  and  that  the  sovereignty 
lay  in  the  people  of  the  state,  or  in  the  words  of 
James  Wilson,  that  the  supreme,  absolute,  and  uncon 
trollable  authority  remains  in  the  people.1  Such  were 

1  Wilson  before  the  Ratification  Convention  of  Pennsylvania,  1787. 
He  says  further:  "His  (Mr.  Findlay's)  position  is,  that  the  supreme 
power  resides  in  the  states  as  governments ;  and  mine  is,  that  it  re 
sides  in  the  people  as  the  fountain  of  government ;  that  the  people 
have  not  —  that  the  people  meant  not  —  and  that  the  people  ought 
not,  to  part  with  it  to  any  government  whatsoever."  —  Elliot's  De 
bates,  II,  418,  et  seq. 


REPUBLICAN  FORM  GUARANTEED.         123 

the  forms  and  principles  of  the  governments  of  the 
states  that  met  in  Convention,  and' of  the  two  states, 
Rhode  Island  and  North  Carolina,  which  afterwards 
joined  the  makers  of  the  Constitution  in  their  adop 
tion  of  this  instrument.  They  were  popular,  repre 
sentative,  and  defined  governments  acting  as  agents 
and  representatives  of  the  body  of  the  people  to  whom 
they  were  strictly  accountable. 

That  these  existing  forms  were  the  only  ones  in 
contemplation  of  the  Convention,  is  shown  by  the  de 
bates,  the  correspondence  of  the  members,  the  essays  of 
the  Federalist,  and  the  journals  of  the  day,  and  by  the 
requirements  of  the  Constitution  itself ;  for  the  frame 
of  the  general  government  was  such  as  was  adapted 
only  to  the  particular  governments  that  embodied 
such  forms  and  such  principles,  and  the  object  of  this 
clause  was  to  prevent  the  admission  to  the  Union  of 
any  government  not  in  harmony  with  the  existing  con 
stituents,  and  to  maintain  by  the  combined  forces  of 
these  constituents,  the  integrity  and  stability  of  each 
of  the  existing  governments.  It  need  hardly  be  said, 
that  future  accessions  to  the  Union  were  required  to 
accept  this  clause,  and  that  the  government  of  the 
United  States,  like  the  governments  of  its  constitu 
ents,  was  a  republican  form  of  government. 

It  will  not  fail  to  be  observed,  that  the  requisite 
went  no  farther  than  the  form  of  government ;  all 
that  was  required  was,  that  the  government  should  be 
"  republican  "  in  form.  This  left  everything  else  to 
the  pleasure  of  the  state,  and  the  Union  took  no  ac 
count  of  its  domestic  institutions.  It  might  have  a 
Senate,  the  terms  of  whose  members  were  for  one  year 
or  for  life ;  its  electoral  vote  for  President  might  be 


124  THE   CONSTITUTION. 

cast  by  the  legislatures  or  through  electors  chosen  by 
the  people  at  large  or  in  districts  ;  it  might  impose  a 
property  qualification  for  the  exercise  of  the  voting 
franchise,  or  suffrage  might  be  free ;  it  might  main 
tain  or  abolish  slavery,  which  was  then  general ;  in  a 
word,  it  might  govern  itself  as  it  pleased,  so  long  as 
its  form  of  government  complied  with  the  Constitu 
tion  :  when  this  was  done,  the  United  States  guar 
anteed  the  maintenance  of  this  form,  and  protection 
against  foreign  and  domestic  violence. 

The  action  of  the  United  States  is  limited  to  a  guar 
antee  of  this  form  of  government :  this  form  therefore 
is  a  prerequisite  without  which  there  can  be  no  action 
of  the  government.  Nor  can  the  United  States  com 
pel  a  people  to  accept  such  a  form,  nor  bestow  it  upon 
them  ;  much  less  can  they  abolish  or  even  alter  such 
a  form,  for  a  guarantee  implies  maintenance  of  existing 
conditions.  The  people  of  a  state  may  change  or  alter 
its  constitution  at  pleasure,  but  so  long  as  it  preserves 
a  republican  form  of  government  and  remains  a  mem 
ber  of  the  Union,  the  United  States  are  bound  to  rec 
ognize  this  form  and  to  maintain  it  against  the  world. 


CHAPTER  VII. 

THE   FORMATION   OF   PARTIES. 

The  evolution  of  parties  in  free  governments  —  The  colonial  epoch, 
the  brooding-  epoch ;  fondness  of  colonists  for  politics,  and  practical 
part  universally  taken  hy  them  in  governing  —  No  general  parties 
during  colonial  period  —  Parties  generated  during  the  revolutionary 
epoch  —  Change  of  colonial  character  —  Constituents  of  the  Feder 
alists. 

ALTHOUGH  parties  appeared  so  abruptly  upon  the 
field  after  the  adoption  of  the  Constitution  of  1788, 
as  to  convey  the  impression  that  they  owed  their  exis 
tence  to  circumstance  merely,  such  was  not  the  case. 
They  were  the  outcome  of  time,  and  they  owed  to  cir 
cumstance  the  acknowledgment  which  is  due  to  op 
portunity  only.  They  did  not  appear  unheralded,  nor 
had  they  failed  to  pass  through  the  regular  stages  of 
development :  but  the  final  stage  of  their  generation 
was  accomplished  so  speedily,  and  their  organization 
was  effected  so  rapidly,  that  before  Washington's  first 
term  had  ended,  they  were  confronting  each  other  in 
full  vigor.  They  exhibited  the  earnestness  that  is  to 
be  attributed  to  the  advocacy  of  principles  which  have 
been  handed  down  from  father  to  son,  and  they  were 
manifesting  the  skill  which  springs  ordinarily  from 
protracted  and  thorough  discipline  alone.  The  princi 
ples  which  actuated  these  parties,  had  been  inherited  by 
one  generation  from  another  from  the  remote  period 
which  had  beheld  the  rise  of  anglican  liberty  ;  but  the 
skill  was  all  their  own. 


126  THE  FORMATION  OF  PARTIES. 

Knowledge  of  the  formation  of  parties  in  the  Uni 
ted  States  is  essential  to  a  right  understanding  of  our 
constitutional  history.  We  seek  in  vain  to  know  the 
nature  of  anything  political  in  a  people,  unless  we  can 
refer  it  to  the  character  impressed  upon  their  politics 
from  the  beginning.  The  characters  of  states  are 
born  with  them;  then-  politics  are  expressions  and 
exponents  of  these  'characters,  and  as  in  representative 
governments  especially,  everything,  sooner  or  later, 
speaks  through  or  is  reflected  by  the  government, 
politics  comprehend  the  historical  motives  and  acts  of 
the  people.  There  is  nothing  more  certain  in  the  his 
tory  of  representative  governments,  than  that  every 
political  event  is  to  be  explained  by  the  constitutional 
character  of  the  people,  and  it  is  equally  certain  that 
this  constitutional  character  is  best  ascertained  at  the 
period  of  its  inception.  It  is  when  a  people  chooses  a 
form  of  government  and  creates  a  system  by  which  its 
public  affairs  are  to  be  administered,  that  it  discloses 
its  true  nature  most  simply ;  it  is  really  making  choice 
of  the  best  mode  of  living,  and  in  doing  so  it  acts  nat 
urally.  We  must  revert,  then,  to  the  events  and  to 
the  principles  which  actuated  it  at  the  period  of  its 
formation,  in  order  to  determine  its  constitutional 
being.  When  such  a  people  reaches  the  point  of 
actually  writing  out  in  fixed  phrase  the  conditions  and 
principles  of  its  political  life,  the  moment  of  its  doing 
so  is  the  only  one  when  the  circumstances  and  condi 
tions  existed  which  produced  this  authoritative  expres 
sion.  The  rule  holds  good,  even  though  the  constitu 
tion  be  the  original  and  single  act  of  one  people  :  but 
where  it  is  a  compact  between  peoples,  the  rule  is  all 
the  more  applicable,  inasmuch  as  the  intention,  which 


PARTIES  ARE  EXPOSITORS  OF  PRINCIPLES.  127 

is  the  binding  force  of  all  contracts,  can  be  ascertained 
only  at  the  moment  of  institution. 

Among  representative  governments,  the  present 
stage  of  growth  and  development  of  a  people's  char 
acter  relates  back  to  the  latest  revolution,  be  this  rev 
olution  violent  and  sudden,  or  peaceful  and  of  the 
operation  of  time.  The  peoples  under  such  govern 
ments  afford  ample  facilities  for  ascertaining  their 
motives  of  constitution,  by  reason  of  their  free  speech. 
Hardly  is  their  legislature  organized,  when  two  schools 
differing  in  their  notions  of  the  nature  of  government 
and  the  manner  of  administering  public  affairs,  reveal 
themselves,  and  these  soon  develop  into  two  great 
parties  which  henceforth  wage  an  incessant  contest  for 
the  possession  of  the  government.  These  parties  are 
not  only  the  agents  whereby  the  opposing  sets  of  ideas 
assert  their  claims  to  supremacy,  but  they  are  the  con 
stant  expositors  of  these  ideas  and  principles,  and  thus 
become  the  natural  exponents  of  the  governing  ideas 
and  of  the  political  nature  of  a  people.  The  history 
of  parties,  therefore,  in  free  governments,  may  be  said 
to  constitute  the  political  history  of  the  people  to 
whom  they  belong,  and,  as  has  been  observed  of  con 
stitutions  and  of  political  compacts,  the  principles  act 
uating  these  parties  are  to  be  found  most  distinctly 
expressed  at  their  formation.  No  matter  how  imme 
diate  and  direct  their  action  of  to-day  may  be  ;  no 
matter  how  temporary  and  fleeting  their  action  of  the 
moment  or  how  apparently  inconsistent  their  •  course, 
the  fundamental  principle  of  their  action  is  to  be  found 
in  their  notions  of  the  nature  of  government  in  gen 
eral,  of  the  nature  of  the  government  under  which 
they  are  acting  and  of  the  mode  of  administering  this 


128  THE  FORMATION  OF  PARTIES. 

government ;  and  these  notions,  as  we  have  seen,  are 
expressed  or  implied  in  the  written  constitution,  or,  at 
least,  asserted  to  reside  in  it.  Parties  profess  to  be 
the  interpreters  as  well  as  the  agents  of  the  constitu 
tion  ;  they  become,  in  consequence,  the  active,  practi 
cal  exponents  of  the  principles  of  government  and  of 
administration  entertained  by  a  people,  and  as  to  a 
just  knowledge  of  this  people's  political  character,  we 
must  seek  the  earliest  expressions  of  it,  so  too,  we 
must  go  back  to  the  formation  of  parties  in  order  to 
ascertain  the  true  character  of  the  principles  they 
enunciate  and  to  comprehend  even  the  latest  events 
which  have  marked  their  ceaseless  strife. 

The  necessity  of  such  a  course  in  everything  relat 
ing  to  the  domestic  politics  of  the  United  States,  is 
peculiarly  great.  The  government  of  our  country, 
has  a  legislature  composed  of  two  houses,  one  of  which 
represents  the  states  and  the  other  the  people,  and  the 
spirit  which  has  animated  our  countrymen  from  the 
beginning  of  their  constitutional  history,  has  been 
that  of  democracy,  and  therefore  the  government 
should  be  deemed  a  representative-democratic  govern 
ment.  In  its  form  of  federation  it  was  novel,  and  it 
becomes  essential,  therefore,  to  a  proper  comprehen 
sion  of  it,  to  betake  ourselves  to  the  times  when  it  was 
inaugurated  and  to  the  men  by  whom  it  was  produced, 
and  whose  conflicting  notions  of  the  nature  of  govern 
ment  and  mode  of  administration  impressed  upon  our 
politics  the  two  great  classes  of  principles  which  still 
contend  for  mastery. 

The  colonial  epoch  was  the  deliberative,  the  rumina 
tive,  the  generative  epoch  of  American  life  :  it  was 


THE  BROODING  PERIOD.  129 

the  brooding  period  of  our  politics.  The  most  amaz 
ing  thing  that  caught  the  eye  of  Chatham  during  the 
Revolutionary  period,  was  the  mastery  of  governmen 
tal  principles  displayed  in  the  provincial  legislatures : 
the  most  significant  thing  to  the  eye  of  the  politician 
in  looking  back  upon  the  Constitutional  period,  is  the 
appearance  of  the  great  parties  at  the  outset.  Both 
facts  are  the  products  of  the  brooding,  creative  period 
of  colonial  life,  but  the  immediate  origin  of  these 
parties  is  to  be  found  in  the  active  and  revolutionary 
times  which  followed  the  Stamp  Act.  Colonial  life 
previous  to  the  Revolutionary  period,  was  peculiarly 
favorable  to  the  race  predilection  for  the  contempla 
tion  and  study  of  everything  relating  to  the  subject  of 
government.  Never  since  the  days  of  the  ancient 
Romans,  has  there  been  a  people  so  devoted  to  this 
study  as  the  English  have  been,  and  it  is  significant 
that  disquisitions  concerning  government  have  ap 
peared  most,  and  this  subject  has  been  pursued  with 
greatest  activity,  during  the  seasons  of  internal  tran 
quillity,  when  there  has  been  no  exciting  cause  to  pro 
voke  their  appearance.  Whenever  the  kingdom  has 
been  convulsed  by  civil  discord,  the  parliamentary 
debates  and  speeches  of  popular  orators  and  the  ephem 
eral  writings  of  the  day  have  exhibited  such  readi 
ness  and  such  comprehension  of  the  subject  as  can  be 
accounted  for  only  by  the  fact  that  protracted  and 
deep  reflection  had  preceded  utterance.  The  men 
were  ready  for  the  event  before  it  happened.  So  with 
the  Americans ;  offshoots  of  British  stock,  they  dis 
played  the  same  characteristic.  The  nature  of  gov 
ernment,  whence  it  came,  what  it  was,  and  what  its 
end,  such  was  the  subject  of  their  speculation.  Their 


130  THE  FORMATION  OF  PARTIES. 

philosophical  inquiries  bore  ultimately  upon  the  politi 
cal  relations  of  man,  and  in  this  they  followed  the 
English  philosophers  :  not  that  they  blindly  accepted 
either  their  philosophy  or  their  notions  of  government 
(for,  as  will  be  seen,  there  was  throughout  the  country 
a  deep  and  widespread  contrariety  to  accepted  notions), 
but  that,  like  them,  their  disposition  was  to  apply  philo 
sophical  methods  to  political  inquiry  and  to  make  the 
nature  of  government  the  subject  of  philosophical  re 
flection.  In  no  country  of  the  world  were  works  upon 
this  subject,  speculative  or  practical,  and  from  Aris 
totle  to  Locke,  more  closely  read  than  in  these  colo 
nies.  Montesquieu  was  generally  known,  possibly 
more  so  than  in  France,  and  certainly,  in  proportion 
to  his  readers,  this  publicist  was  more  discussed 
throughout  the  colonies  than  he  was  in  any  other 
country.  A  rage  for  discussion  and  debate  respecting 
the  nature  of  things,  and  particularly  the  nature  of 
the  citizen  and  what  his  relations  to  his  fellows  and 
his  superiors  were,  possessed  the  land.  When  we 
take  up  the  biographies  of  the  leading  men  of  our 
Revolution,  we  are  struck  with  the  universal  dispo 
sition  of  the  law  students  during  the  middle  of  the 
eighteenth  century  to  debate  abstract  questions  relat 
ing  to  government,  and  to  discuss  with  gravity  and 
earnestness  the  abstruse  propositions  set  forth  by  po 
litical  history.  It  was  the  custom,  too,  in  the  south, 
for  the  young  planters  to  do  the  same  thing,  long 
before  Blackstone  advised  the  youthful  aristocrats  of 
Great  Britain  to  pave  their  way  to  the  hereditary  ad 
ministration  of  their  country's  affairs  by  reading  its 
laws,  and  hundreds  studied  law,  not  to  practice  it,  but 
for  the  sole  purpose  of  enlarging  the  knowledge  that 


FONDNESS  FOR  ABSTRACT  POLITICS.      131 

is  essential  to  the  art  of  governing  well.  Thus 
throughout  the  land,  those  who  were  to  have  a  hand 
in  its  government,  fitted  themselves  especially  for  the 
task.  The  higher  courts  invariably  contained  num 
bers  of  men  to  whom  political  history  and  constitu 
tional  law  were  familiar.  These  facts  explain  the 
eager  interest  and  general  intelligence  shown  in  the 
questions  which  arose  respecting  the  Writs  of  Assist 
ance.  All  over  the  land,  north  and  south,  the  people 
seemed  to  be  alive  to  the  subject  and  to  clearly  compre 
hend  the  questions  involved  and  how  they  affected 
personal  rights  ;  and  this  accounts,  too,  at  a  later  pe 
riod,  for  the  flood  of  disquisitions  concerning  the  re 
lations  of  the  colonies  to  Parliament  and  kindred 
subjects.  Many  of  these  productions,  even  at  this 
day,  excite  interest  independent  of  the  circumstances 
which  called  them  forth,  and  are  still  worthy  of  the 
earnest  study  of  the  publicist.  Thus  the  colonies 
were  rich  in  men  who  had  read  much,  and  who  had 
reflected  deeply  upon  the  nature  of  government,  upon 
its  different  forms,  and  upon  its  relations  to  society  as 
set  forth  by  political  history.  The  land  had  its 
prophets. 

If  such  were  the  favorable  disposition  of  colonial 
life  to  speculative  and  theoretical  knowledge  of  what 
constituted  the  state,  equally  conducive  was  it  to  fa 
miliarity  with  the  practical  workings  of  administration. 
Parliamentary  government  was  much  the  same  every 
where  throughout  the  English-speaking  dominions  ;  the 
legislatures  usually  took  the  form  of  two  chambers, 
though  even  were  there  but  one,  the  procedure  was 
subject  to  the  same  principles  and  to  the  same  rules 
as  was  that  of  the  British  Parliament.  This  may  be 


132  THE  FORMATION  OF  PARTIES. 

said  also  of  the  executive  administration  by  the  Gov 
ernor  and  his  counselors  ;  they  represented  the  King 
and  his  cabinet,  and  government  was  administered 
upon  the  same  principles  in  the  smallest  dependency 
as  in  the  greatest,  or  indeed  as  it  was  administered  at 
Westminster.  Service  in  the  legislature  was  not 
shunned,  but  was  accepted  from  a  sense  of  the  duty 
owed  by  the  citizen  to  the  commonwealth  as  well  as 
from  motives  of  ambition.  The  consequence  was, 
that,  during  a  lifetime,  there  were  few  men  of  ability 
and  integrity  who  had  not  filled  office  of  some  kind, 
while  at  all  times  there  were  young  men  awaiting  im 
patiently  their  turn  at  the  task  of  governing.  Every 
man  took  his  trick  at  the  wheel.  There  were  thirteen 
governments  on  this  coast  with  their  Councils  and 
Houses  of  Assembly  to  a  number  of  white  male  adults 
which  never  equalled  500,000,  or  the  population  of  a 
first  class  American  city  of  to-day.  The  number  of 
men,  therefore,  who  were  acquainted  with  the  practical 
workings  of  administration  and  legislation,  must  have 
been  greater  in  proportion  than  that  which  existed 
among  any  other  people  at  or  since  that  time  :  the  art 
of  administration  was  brought  to  one's  door,  and  it  is 
no  wonder  that  visitors  to  these  shores  carried  away 
the  impression,  that  every  American  of  respectability 
was  a  working  politician,  nor  that  the  world  was  sur 
prised  at  the  general  familiarity  with  politics. 

It  is  clear  from  this  brief  description  of  the  contem 
plative  life  of  the  colonist,  and  of  his  active  life  in 
practically  administering  public  affairs,  that  his  race 
predilections  for  the  science  and  art  of  government 
found  in  this  remote  quarter  of  the  globe  no  mean 
theatre  of  action.  In  truth,  the  colonies  afforded  as 


NO  GENERAL  PARTIES  IN  COLONIES.        133 

ready  and  as  good  schools  of  representative  govern 
ment  as  ever  were  known. 

During  the  colonial  period,  there  had  been  no  gen 
eral  parties  whatever ;  for  there  was  nothing  to  call 
them  into  existence,  nor  was  there  any  ground  for 
them  to  act  upon.  There  could  be  no  question  affect 
ing  the  colonists  as  one  people,  for  they  were  not  one 
people ;  and,  as  there  was  no  union  of  the  colonies, 
the  crown  dealt  with  every  one  singly  and  exclusively. 
What  party  spirit  there  might  be,  concerned  itself 
with  the  merest  of  domestic  details,  and  was  confined 
rigidly  within  the  limits  of  each  colony,  and  being  re 
stricted  to  the  subjects  presented  by  the  narrow  and 
dull  routine  of  local  administration,  it  had  110  oppor 
tunity  to  expand.  It  is  true,  that  throughout  the 
colonies  men  classed  themselves  as  Whigs  or  Tories ; 
but  these  terms  had  little  significance  beyond  express 
ing  the  sympathies  of  the  colonist  with  one  or  other  of 
the  parties  of  Great  Britain,  though  sometimes  they 
were  adopted  in  order  to  distinguish  different  local 
opinions.  During  the  Revolutionary  period,  the  terms 
"Whig"  and  "Tory"  gradually  assumed  a  general 
character  in  this  respect,  that  the  latter  meant  one 
who  took  the  Parliamentary  view  of  the  relations  of 
the  colonies  to  the  British  Parliament  and  the  former 
meant  one  who  denied  the  omnipotence  of  this  Parli 
ament  in  the  colonies.  At  last,  when  arms  had  been 
taken  up,  "  Whig  "  applied  to  a  colonist  of  American 
principles  and  "  Tory  "  to  one  of  British  principles : 
one  was  "  patriot "  and  the  other  was  "  loyalist,"  but 
these  were  to  be  found  in  opposing  camps,  not  on  the 
opposite  sides  of  a  legislative  chamber.  Had  there 


134  THE  FORMATION   OF  PARTIES. 

been  such  an  institution  as  a  general  colonial  legisla 
ture,  previous  to  the  Revolution,  doubtless  there  would 
have  been  two  great  parties  :  but  while  it  is  apparent 
that  the  elements  for  parties  existed,  and  that  the 
unsettled  colonial  relations  to  the  British  government 
alone  would  have  afforded  subjects  for  opposition,  it 
is  nevertheless  clear  that,  as  things  were,  we  cannot 
speak  of  general  parties  in  the  colonies  with  anything 
like  precision  or  truth.  The  "  Government  party  " 
meant  the  "  ins,"  and  the  opposition  in  each  province, 
whatever  name  it  assumed,  meant  merely  the  "  outs." 
The  necessity  of  concert  of  action  repressed  the  for 
mation  of  parties  among  the  Americans  during  the 
times  of  agitation  and  conflict.  Factions  there  were 
in  plenty,  and  we  observe  the  rise  of  conflicting 
notions  particularly  after  the  emigration  of  the  loyal 
ists  had  left  the  field  clear  ;  but  there  was  no  organi 
zation  of  parties.  Nevertheless,  it  was  during  this 
Revolutionary  period,  that  is  to  say,  between  1760 
and  the  adoption  of  our  present  constitution,  that  the 
great  parties  were  generated.  In  1765  the  young 
men  of  that  day  were  entering  upon  times  to  which 
no  other  period  in  our  history  affords  a  parallel.  The 
peculiarity  which  distinguishes  this  epoch  from  the 
others  in  our  annals,  is,  that  it  was  conspicuously  one 
of  constitutional  and  political  development,  or,  to  speak 
more  accurately,  it  was  the  period  when  the  constitu 
tional  growth  and  expansion  of  the  British  colonies 
upon  the  American  continent,  having  completed  the 
work  of  adapting  ancient  principles  to  novel  condi 
tions,  reached  the  stage  where  the  state  was  to  cast 
aside  dependence  for  independence,  and  the  citizen 
was  to  consummate  his  assertion  of  individuality  in  mat- 


EFFECTS   OF  REVOLUTIONS.  135 

ters  of  government.  As  far  as  constitutional  govern 
ment  is  concerned,  the  experience  of  the  British  people 
in  .the  XVIIth  century  is  like  that  of  the  Ameri 
cans  during  their  Revolutionary  period  :  it  encoun 
tered  those  political  conditions  where  action  takes  the 
place  of  inquiry,  and  where  the  long-generating  ab 
straction  parts  from  its  progeny  of  aggressive  princi 
ples  which  assert  their  right  to  action  and  hew  their 
way  remorselessly  to  control.  Here,  as  there,  one 
result  of  revolutions,  and  perhaps  the  most  benefi 
cent  result,  was  the  production  of  great  parties  ;  those 
popular  organizations  whereby  fixed  but  clashing  prin 
ciples  of  government  impress  themselves  upon  admin 
istration  and  legislation,  to  the  control  and  regulation 
of  both.  Revolutionary  periods  form  the  startling 
chapters  in  a  people's  history ;  but  when  the  end  of 
the  story  is  reached,  the  most  impressive  thing  about 
them  is  not  the  succession  of  events,  the  popular  tur 
bulence,  men  quaking  with  fear,  or  even  the  pictur 
esque  and  lively  movement  of  the  physical  strife  in 
which  they  terminate,  but  it  is  the  changed  character 
of  the  people  themselves.  These  people  are  the  same, 
yet  not  the  same :  their  character  appears  in  alto 
gether  another  light;  new  objects  are  set  for  their 
attainment,  and  motives  different  from  those  of  old 
inspire  their  action. 

For  example,  he  who  takes  up  the  history  of  the 
Revolution  of  1688  immediately  after  laying  down  the 
history  of  Elizabeth's  reign,  cannot  fail  to  be  struck 
with  the  wondrous  change  in  character  which  had 
come  over  the  English.  The  fixed  and  constant  qual 
ities  of  the  people,  it  is  true,  are  the  same,  but  their 
ways  of  acting,  their  motives,  their  political  principles, 


136  THE  FORMATION  OF  PARTIES. 

their  spirit,  are  altogether  different.  The  tranquil 
lapse  of  time  does  not  account  fully  for  the  change 
which  has  been  going  on  during  the  period  of  turbu 
lence  and  revolution  set  down  in  the  annals.  These 
annals  do  not  equivocate,  and  they  disclose,  that  the 
people  had  been  repeating  the  old  and  endless  question, 
Who  are  we,  where  are  we,  and  whither  are  we  going  ? 
as  they  never  before  had  done,  and  that  the  attempt 
to  settle  these,  as  far  as  politics  was  concerned,  had 
been  accompanied  by  convulsion  which  had  ended  in 
society  taking  upon  itself  a  character  it  never  before 
had  borne.  So,  too,  the  contrast  presented  by  the 
eager,  restless,  but  determined  Americans  of  1789 
with  the  passive,  contented,  and  drowsy  colonies  of 
1750.  Like  the  English  of  the  preceding  century,  the 
Americans  had  been  passing  through  a  formative  pe 
riod,  and  had  been  brought  face  to  face  with  first 
principles.  They,  likewise,  had  been  inquiring  into 
the  nature  of  things,  and  the  questions  which  had  con 
cerned  them  were,  What  is  the  citizen,  and  what  his 
rights  and  duties  ?  What  is  government ;  whence 
did  it  emanate ;  what  its  end  ;  and  what  the  constant 
relations  existing  between  it  and  the  people  ?  What 
constitutes  the  people,  and  wherein  lies  sovereignty  ? 
Such  were  the  impulses,  which,  when  inquiry  gave  way 
to  action,  and  this  in  turn  pursued  its  course  to  social 
convulsion,  modified  popular  character.  The  young 
men  of  1765,  then,  found  themselves  confronted  at 
the  outset  of  their  careers,  with  novel  conditions 
which  provoked  the  inquiry  that  went  to  the  root  of 
their  nature  as  men  and  as  subjects.  The  war  for 
independence  absolved  them  from  the  sense  of  depen 
dence  upon  a  superior  power  :  they  could,  therefore, 


FIRST  PRINCIPLES.  137 

look  upon  their  government  from  a  single  standpoint. 
The  attainment  of  independence  carried  them  still  fur 
ther,  and,  forcing  upon  them  the  creation  of  a  cen 
tral  government,  brought  them  to  the  direct  consider 
ation  not  only  of  what  government  was  and  what  it 
should  be,  but,  above  all,  what  it  was  in  the  power  of 
man  to  make  it.  The  nature  of  things,  the  knowledge 
of  the  nature  of  things,  and  how  to  use  such  know 
ledge  for  the  good  of  mankind,  this  it  was  which  had 
troubled  the  days  and  nights  of  their  youthful  man 
hood  ;  and  it  was  this  inquiry  applied  to  the  experience 
afforded  them  by  their  own  colonial  governments, 
which  produced  the  spectacle  of  a  roomful  of  lawyers 
and  planters  giving  to  their  people  a  constitution, 
whic"h  the  world  has  treated  since  then  as  if  it  were  a 
discovery. 

The  Articles  of  Confederation  are  not  of  themselves 
evidence  that  parties  existed  at  the  time  they  were 
framed.  This  instrument  was  not  the  outcome  of 
party  contention  or  party  compromise  ;  it  is  indicative 
merely  of  the  necessity  for  combination,  military  and 
political,  then  pressing,  and  of  the  intentions  of  its 
makers.  These  Articles  were  not  adopted  until  1781, 
and  as  they  were  superseded  in  1788  by  the  present 
constitution,  they  had  an  existence  of  barely  seven 
years.  Peace  was  declared  in  1783,  and  the  work  of 
rehabilitation  became  the  need  of  the  moment :  divers 
measures  to  this  end  were  accordingly  brought  for 
ward,  and  every  scheme  had  its  advocates  who  urged 
its  adoption  as  interest  or  sentiment  dictated.  During 
the  Confederation  the  instances  of  counteraction  had 
become  more  and  more  numerous  and  significant,  and 
two  classes  or  schools  of  politicians  had  begun  to 


138  THE  FORMATION  OF  PARTIES. 

assert  themselves ;  those  who  at  any  cost  would  keep 
the  states  strong  and  the  agent  weak,  and  those  who 
would  have  the  agent  transformed  into  an  authorita 
tive  power.  The  element  of  union,  imperfect  though 
it  was,  gave  rise  to  a  class  of  men  who  desired  greater 
union  and  this  class  acquired  importance  with  the 
growing  necessities  and  aspirations  of  the  new  republic. 
These  men  saw  clearly,  that  the  states  under  the  Con 
federation  could  not  maintain  the  same  security  from 
external  foes  as  they  had  enjoyed  when  they  had  been 
colonies  under  the  protection  of  the  greatest  maritime 
power  in  the  world,  and  that,  though  their  remoteness 
was  in  itself  protection  of  a  high  order,  they  were  now 
very  badly  off  upon  the  high  seas.  They  would  have 
to  take  care  of  themselves ;  but  if  they  were  to  influ 
ence  or  command  the  respect  of  the  great  powers,  they 
must  be  able  to  exert  the  force  of  a  great  power,  and 
to  accomplish  this  there  was  nothing  to  do  but  to  be 
come  one.  To  stand  before  the  world  as  a  great  power, 
and  to  take  a  position  in  the  family  of  nations,  was  a 
natural  sequence  of  independence,  but  in  the  existing 
undeveloped  condition  of  the  states  such  a  thing  was 
impossible.  Again,  under  the  policy  of  colonial  ad 
ministration,  the  colonies  had  been  restrained  from 
becoming  manufacturing  communities,  yet  to  become 
such  was  the  dream  of  the  extreme  northern  section  ; 
but  this  was  out  of  the  question  so  long  as  a  portion 
of  the  country  refused  to  shut  its  ports  against  foreign 
manufactures,  and  a  central  power  strong  enough  to 
compel  uniformity  seemed  to  be  a  proper  result  of 
combination  to  these  men,  and  therefore  they  advo 
cated  closer  union  of  the  states. 

There  was  nothing,  in  fact,  to  indicate  permanent 


PARTIES   GENERATED  IN   THE  STATES.  139 

organization  of  the  different  groups  ;  they  were  not 
united  by  any  general  and  common  principle,  and  the 
object  sought  by  most  of  them  was  temporary  and  ma 
terial.  There  was  no  leadership,  and  thus,  without 
general  principles,  without  binding  organization,  and 
without  guidance  or  control,  they  constituted  factions 
rather  than  parties.  It  is  significant  of  the  lack  of 
general  parties,  that,  at  this  time,  when  the  common 
distress  of  the  country  called  for  the  greatest  energy 
of  Congress,  this  body  dwindled  away  almost  to  a 
nullity.  Its  intellectual  character  waned  with  its  de 
clining  importance,  and  it  sunk  in  the  esteem  of  the 
people.  During  periods  when  every  member  should 
have  been  in  his  seat,  days  passed  without  a  quorum. 
It  is  useless,  then,  to  look  for  parties  in  the  Congress 
of  the  United  States,  at  this  time.  On  the  other 
hand,  if  we  turn  our  eyes  upon  the  state  legislatures, 
the  scene  is  a  different  one,  and  it  is  apparent  that 
the  formative  process  of  parties  is  in  full  operation. 
It  is  natural,  that  the  first  expressions  of  political  no 
tions  should  be  found  in  the  assemblies  most  closely 
connected  with  the  daily  lives  and  thoughts  of  the  citi 
zens,  and  such  is  found  to  be  the  case.  The  local  legis 
latures  and  the  ratifying  Conventions  were  thronged 
and  debate  was  active  :  there  was  where  the  great 
parties  generated. 

At  the  peace  of  1783,  public  sentiment  had  made 
great  advances  towards  democracy  ;  still,  the  different 
parts  of  the  country  were  not  abreast  of  each  other. 
Republican  feeling  had  had  little  change  to  experi 
ence  in  Rhode  Island  and  Connecticut,  for  their  char 
ter  governments  had  been  recognitions  of  the  right  of 


140  THE  FORMATION   OF  PARTIES. 

self-government,  and  the  governments  constituted  in 
accordance  with  them  were  of  a  thoroughly  popular 
nature.  There  was  no  reactionary  sentiment  of  any 
account  in  either  of  these  states,  and,  after  the  emi 
gration  of  the  loyalists,  the  same  may  be  said  of 
Massachusetts.  But,  on  the  other  hand,  the  New 
England  states  were  the  commercial  states,  and  here 
was  the  greatest  concentration  of  society.  In  New 
York,  Pennsylvania,  New  Jersey,  and  Maryland,  the 
colonial  governments  had  not  been  of  so  popular  a 
character.  In  Pennsylvania  the  government  had 
been  originally  palatine  in  nature;  powers  were 
derived  from  the  crown  through  the  medium  of  pro 
prietors,  and  the  overshadowing  influence  of  these 
great  landlords  had  not  favored  the  development  of 
popular  notions  in  government.  A  class  of  depend 
ents  arose  in  each,  small  in  number  but  clothed  with 
an  officiality  which  stood  between  the  proprietor  and 
the  people,  and  which  questioned  every  effort  of  the 
latter  to  acquire  power.  In  New  York,  the  Dutch 
element  planted  itself  upon  immovable  conservatism, 
and  the  great  landowners  were  virtually  an  aristocratic 
class.  In  Virginia  and  other  southern  states,  the 
planters  of  the  seaboard  constituted  a  similar  class  ; 
they  were  lords  of  their  plantations  and  slaves,  and 
they  resisted  anything  that  threatened  diminution  of 
their  importance ;  they  were  conservative  in  the  high 
est  degree.  The  whole  frontier,  north  and  south,  was 
republican  and  democratic. 

The  privileged  classes  which  had  sprung  up  during 
the  sway  of  the  proprietors  and  of  the  royal  govern 
ments  were  unquestionably  weakened  by  the  loyalist 
emigration,  but  they  were,  too,  the  classes  which 


CONSTITUENTS   OF  THE  FEDERALISTS.  141 

had  acquired  wealth,  and  this  in  a  new  country 
generally  takes  the  form  of  land.  Many  of  these 
persons  who  possessed  estates  of  which  it  was  impossi 
ble  to  disencumber  themselves  readily,  finding  their 
possessions  in  danger  of  confiscation,  adopted  the 
course  of  standing  by  their  wealth  and  of  keeping  a 
civil  tongue  in  their  heads.  Having  made  this  conces 
sion  of  principle  to  thrift,  it  is  not  surprising  that  after 
the  adoption  of  the  Constitution,  we  find  them  active 
supporters  of  him  who  had  announced  as  one  of  the 
objects  which  he  had  set  before  himself  to  attain,  the 
"  restoration  of  landed  property  to  its  due  value." 
They  therefore  furthered  Hamilton's  financial  meas 
ures  with  their  influence. 

This  element  which  had  been  disaffected  to  the 
Revolution,  it  need  hardly  be  said,  was  in  favor,  too, 
of  that  form  of  government  which  most  closely  re 
sembled  the  one  from  which  it  had  been  torn.  The 
whilom  loyalists  were  still  monarchists  at  heart,  and 
it  is  not  surprising  that  they  should  favor  anything 
which,  it  was  whispered,  promised  a  return  to  mon 
archy.  An  interpretation  of  the  Constitution,  which 
tended  to  absorption  of  the  rights  of  the  states  by  the 
general  government  would  have  their  support,  because 
it  tended  to  the  erection  of  a  central,  powerful  author 
ity  from  which  a  step  to  a  throne  would  be  short  and 
easy  to  take.  It  was,  doubtless,  this  class  which  was 
most  to  blame  in  bringing  upon  the  Federalists  the 
odium  of  having  an  intention  to  restore  monarchy. 

Another  weighty  constituent  of  the  Federal  party 
was  the  commercial  interest.  This  existed  chiefly 
along  the  seaboard,  and  was  concentrated  in  the  cities. 
One  character  which  the  colonies  had  borne,  had  been 


142  THE   FORMATION  OF  PARTIES. 

that  of  factories  for  British  commerce.  Much  of  the 
capital  which  had  been  employed  here,  had  been  Brit 
ish  capital,  and  the  connection  sustained  with  Europe 
by  our  merchants  had  been  connections  with  British 
houses.  No  sooner  had  peace  been  declared,  than 
British  commerce  sought  to  regain  its  American  mar 
ket.  To  this  end  goods  flowed  freely  into  our  re 
opened  ports,  and  the  British  Government  aided  the 
effort  of  its  merchants  to  recover  our  trade,  by  ob 
structing  us  in  every  continental  direction  to  which 
we  inclined  and  by  facilitating  reinstatement  of  com 
mercial  connection  with  Great  Britain.  But  the  de 
pression  which  followed  the  peace  was  attributed  in  a 
great  degree  to  the  impotence  of  the  Confederation, 
and  the  spread  of  democratic  doctrines  and  the  pro 
nounced  efforts  of  the  debtor  classes  to  obtain  relief 
by  summary  processes  at  the  expense  of  their  credi 
tors,  alarmed  foreign  lenders  and  checked  the  supply 
of  funds.  Domestic  trade,  equally  timorous,  shared 
the  alarm.  What  was  wanted  by  the  commercial 
classes,  was  a  government  whose  stability  would  com 
mend  it  to  the  foreign  lender.  It  is  obvious,  that 
the  needs  of  commerce  thus  drew  to  the  support  of  the 
Constitution  the  whole  commercial  interest  and  threw 
its  weight  in  favor  of  a  form  of  government,  which, 
in  its  division  of  powers,  resembled  the  British  system 
and  promised  this  stability. 

A  far  different  motive  enrolled  upon  the  side  of  the 
Constitution  and  of  the  Federalist  administration,  the 
higher  grade  of  officers  in  the  late  revolutionary  army. 
Many  of  these  belonged  to  the  wealthy  class  or  had 
bodies  of  land  which  they  hoped  would  attain  great 
value  in  the  course  of  time.  But  they  were  animated 


CONSERVATIVE   ELEMENTS  143 

also  by  motives  peculiar  to  themselves :  they  had  tasted 
the  sweets  of  official  and  social  elevation,  and  had 
no  sympathy  with  a  democracy  which  threatened  to 
do  away  with  distinction.  The  general  officers  of 
the  late  army  are  consequently  to  be  found  promi 
nent  among  the  adherents  of  a  constitution  which 
insured  the  stability  they  desired  so  greatly,  and  of  an 
administration  whose  measures  were  conducive  to  the 
subordination  of  society  and  to  the  consolidation  of 
authority. 

Finally,  it  must  not  be  forgotten  that  men  born  and 
brought  up  under  an  aiiglican  government,  and  one 
which  was  the  outgrowth  of  race  instincts  and  race 
experience,  should  prefer  a  form  of  government  which 
resembled  the  only  one  of  which  they  had  any  practi 
cal  knowledge,  and  which  addressed  itself  to  their  race 
character.  The  nearer  it  came  to  the  old  government 
the  better,  and  the  Constitution  afforded  such  a  gov 
ernment,  inasmuch  as  it  was  anglican  in  nature  and 
was  free  from  the  features  that  formerly  had  become 
obnoxious  to  the  colonists.  Those,  therefore,  who 
saw  in  a  government  of  distributed  powers  and  of 
powers  which  checked  and  balanced  each  other,  the 
safest  form  which  authority  could  take,  hastened  to 
support  the  new  constitution.  Thus  the  reflective 
men  and  those  particularly  whose  avocations  led  them 
to  consider,  more  or  less,  the  nature  of  government, 
those  who  having  something,  deemed  the  delegation  of 
little  felt  powers  a  small  price  to  pay  for  the  security 
of  their  possessions,  eagerly  gave  their  adhesion  to  a 
constitution  which  promised  them  this  security,  and 
they  supported  an  administration  which  made  en 
hanced  value  of  these  possessions  a  declared  object  of 


144  THE  FORMATION  OF  PARTIES. 

its  policy.  The  professional  classes,  consequently, 
were  largely  represented  among  the  Federalists :  but 
the  chief  support  must  not  be  lost  sight  of,  and  this 
was  the  one  which  came  to  the  Constitution  because  it 
was  significant  as  a  race  expression,  and  because  the 
Federalists  favored  class  and  the  disposition  to  mate 
rial  aggrandizement. 


CHAPTER  VIII. 

THE    FOKMATION    OF   PAETIES CONTINUED. 

Constituents  of  the  Democratic -Republican  Party  (Anti- Federal 
ists)  —  Principles  prevalent  among  the  people,  especially  the  agri 
culturists  —  Errors  of  the  Federalists  —  Jefferson  and  Hamilton  — 
The  Old  School  and  the  New  School. 

SUCH  were  the  personal  and  political  elements  of 
the  Federalists  and  such  the  material  motives  for  sup 
porting,  first  the  Constitution  and  afterward  the 
Washington  Administration.  As  the  measures  of  the 
Treasury  multiplied,  divergence  of  opinion  grew,  and 
the  different  social  elements  arrayed  themselves  against 
each  other.  It  must  be  kept  in  mind,  that  the  two 
great  parties  had  assumed  shape  in  the  policy  of  the 
administration.  He  who  sees  in  the  opposition  to  the 
measures  of  the  Treasury,  opposition  to  the  Constitu 
tion  itself,  is  wide  of  the  truth.  We  have  already 
seen,  that,  though  the  Constitution  was  not  adopted 
by  such  a  concurrence  of  opinion  or  with  such  general 
enthusiasm  as  to  warrant  its  complete  success,  the 
general  disposition  to  give  it  a  fair  trial,  was  unmis 
takable.  This  disposition  must  not  be  confounded  with 
sullen  acquiescence.  It  was  real  and  hearty,  and  that 
it  was  so,  is  shown  by  the  rapidity  with  which  the 
Constitution  grew  into  favor  ;  and  apart  from  certain 
localities  and  interests,  there  was  nothing  like  hostility 
to  it,  but  merely  the  prudential  doubt  which  accompa- 


146  THE  FORMATION  OF  PARTIES. 

nies  every  experiment.  It  is,  then,  going  altogether 
too  far  to  include  opposition  to  the  Constitution  itself 
as  an  element  in  the  composition  of  the  new  party. 
Those  who  had  opposed  the  adoption  of  the  Constitu 
tion,  had  been  styled  anti-Federalists,  and  as  many  of 
the  new  party  had  been  such,  this  name  clung  to 
them.  That  it  was  a  misnomer,  however,  is  shown 
by  these  facts :  1.  That,  after  the  adoption  of  the 
Constitution,  the  anti-Federalists  never  organized  as 
such  ;  and  never  re-appeared  in  any  capacity  as  anti- 
Federalists.  2.  That  the  name  was  soon  seen  to  be 
out  of  place,  and  was  discarded  for  others,  such  as 
Jeffersonians,  Republicans,  and,  at  last,  Democrats. 
3.  That  the  main  cause  which  brought  the  new  party 
into  existence  was  to  establish  a  construction  of  the 
Constitution  which,  it  asserted,  would  give  this  instru 
ment  its  true  effect.  This  it  could  not  do,  had  it  not 
already  accepted  the  Constitution  and  did  it  not  stand 
pledged  to  its  support. 

The  elements,  then,  which  the  measures  of  the 
Treasury  drove  into  opposition  to  the  administration, 
were  as  follows  :  — 

1.  Those  who  saw  in  the  federal  government  a 
power  created  for  the  benefit  of  the  states,  and  which 
stood  to  them  as  a  creature  stands  to  its  creator. 
These  were  they  who  believed  that  the  race  predilec 
tion  for  local  self-government  was  to  be  fostered  at 
the  cost,  if  need  be,  of  everything  else,  except  funda 
mental  rule  and  order.  Indeed,  in  their  eyes,  there 
was  no  social  good  nor  evil  that  did  not  flow  from 
obeying  or  opposing  the  chief  of  all  race  instincts. 
Self-government  was  as  great  a  virtue  to  them  in  poli 
tics  as  self-control  was  in  ethics,  and  the  right  to  it 


CONSTITUENTS  OF  THE  ANTI-FEDERALISTS.  147 

was  the  highest  of  rights.  It  was  the  one  axioma 
tic  political  foundation  of  the  race.  Argument  there 
might  be,  concerning  this  or  that  element  of  govern 
ment,  of  this  or  that  political  force  ;  but  the  founda 
tion  of  free  government  was  beyond  doubt  or  ques 
tion  —  it  was  the  inviolability  of  the  governments 
which  had  sprung  out  of  local  wants  and  circum 
stances,  and  the  inviolability  of  the  inalienable  right 
which  every  citizen  had  in  such  governments :  con 
cerning  this  there  could  be  no  dispute.  In  course  of 
time,  the  accessions  to  the  party  which  made  itself 
the  champion  of  this  "  doctrine  "  became  so  great  as 
to  drive  the  Federalists  off  the  field.  At  first  it  was 
the  fear  of  compromising  this  fundamental  principle, 
which  produced  so  weak  a  government  as  that  of  the 
Confederation  and  caused  many  of  the  most  patriotic 
men  to  withhold  their  assent  to  the  adoption  of  the 
Constitution.  Once  adopted,  it  was  these  men  who 
led  public  feeling  to  the  point  of  giving  it  a  fair 
trial;  and  it  was  these  men,  who,  recognizing  its  merits 
and  observing  its  success  in  the  practical  working  of 
government,  became  its  staunch  adherents  and  advo 
cated  a  rule  of  construction  which  would  ensure  the 
intention  of  its  framers.  When  they  appealed  to  the 
instinct  of  local  self-government,  the  appeal  was  an 
swered  throughout  the  land,  and  proved  to  be  the 
most  general,  most  unsectional,  and  most  popular 
impulse  ever  known  in  our  annals. 

2.  It  is  not  difficult  to  infer,  if  the  measures  of  the 
Treasury  tended  to  the  aggrandizement  of  the  moneyed 
classes,  who  were  the  creditors,  that  the  debtors  looked 
for  protection  to  the  leaders  of  the  opposition.  Now 
the  debtor  classes  embraced,  a,  the  lower  grades  of 


148  THE  FORMATION   OF  PARTIES. 

officers  and  the  disbanded  rank  and  file  of  the  late 
army ;  Z>,  the  small  traders  who  were  dependent  upon 
the  great  ones  and  the  money  lenders  ;  c,  the  agricul 
turists,  particularly  those,  who,  in  the  northern  states, 
lay  between  the  rich  fields  of  the  seaboard  and  the 
frontier.  These  held  small  farms  which  in  great  part 
were  covered  with  woods  and  whose  clearings  were 
still  encumbered  with  stumps.  Little  money  circula 
ted  among  them,  and  trade  was  conducted  by  the  un 
equal  method  of  barter.  Their  indebtedness  though 
not  actually  great  was  relatively  so,  as  every  debt  is 
great  to  him  who  has  not  the  money  wherewith  to  dis 
charge  it.  £?,  The  merchants  without  foreign  credit, 
and  who  were  distressed  by  the  enchancement  of  val 
ues  in  the  commodities  whose  ingress  was  hampered 
by  the  restraints  put  upon  certain  species  of  commerce 
by  Great  Britain.  Inasmuch  as  the  great  depression 
which  followed  the  peace,  produced  wide-spread  loss, 
which  augmented  the  waste  and  destruction  of  an  ex 
haustive  war,  there  were  few  localities  wherein  the 
debtors  did  not  largely  predominate  and  few  which 
did  not  supply  a  contingent  to  the  new  party. 

3.  The  southern  planters  with  whom  the  principle 
of  local  self-government  was  all-powerful,  began  to 
change  front,  and  it  will  be  seen  that  Virginia  pro 
tested  against  the  assumption  of  the  state  debts  as  a 
palpable  violation  of  the  Constitution.  The  building 
up  of  moneyed  classes  which  could  flourish  only  in  that 
part  of  the  country  where  society  was  concentrated, 
that  is  the  North,  augmented  sectional  feeling,  which 
already  had  been  aroused  by  the  contentions  in  the 
convention  over  the  slave  trade,  the  fugitive  slave 
clause,  and  the  representation  of  slaves  in  Congress. 


TWO  FUNDAMENTAL  NOTIONS.  149 

Apart  from  this,  the  creation  of  a  moneyed  class, 
anywhere,  north  or  south,  tended  to  develop  appre 
hension  on  the  part  of  the  great  planters,  whose  wealth 
consisted  not  in  money  but  in  land  and  slaves.  Such 
a  class  would  be  a  rival  to  be  feared.  Alarmed,  then, 
by  a  policy  which  ran  counter  to  their  interests  at 
every  step  it  took,  they  ranged  themselves  with  the 
opposition.  Perhaps  it  was  in  deference  to  this  gen 
eral  change  of  sentiment  in  his  state,  that  Madison 
took  counsel  of  his  fears  respecting  the  encroachment 
upon  the  rights  of  the  states,  and  arrayed  himself  in 
open  opposition  to  Hamilton's  measures. 

Two  notions  animated  the  landed  or  farming  classes, 
for  the  integrity  of  which  they  seemed  ready  to  sac 
rifice  everything  material.  One  of  these  was,  that 
sovereignty  has  its  source  in  the  people  and  that  the 
power  to  exercise  it  is  a  power  delegated  by  the  peo 
ple,  to  whom  accountability  for  such  exercise  is  obliga 
tory.  The  other  was,  that  there  is  a  tendency  in  power 
to  concentrate  into  single  hands  ;  that  the  disposition 
to  abuse  power  is  inherent  in  the  nature  of  man,  and 
that,  therefore,  no  greater  power  should  be  granted 
than  that  which  is  indispensable  to  the  management 
of  public  affairs.  These  two  notions  had  grown  up 
insensibly  with  the  people,  and  colonial  history  af 
fords  illustration  of  their  development  and  of  their 
existence  as  deep,  underlying  forces  of  political  action. 
The  conditions  of  colonial  life  had  been  favorable  to 
the  development  of  these  principles  ;  the  history  of 
the  people  of  England,  especially  that  portion  of  it 
which  embraces  the  Cromwellian  wars  and  the  Revo 
lution  of  1688,  served  to  strengthen  and  confirm 
them,  and  when  we  reached  the  point  where  we  had 


150  THE  FORMATION  OF  PARTIES. 

to  set  up  a  general  government  for  ourselves,  they 
had  become  so  deeply  rooted  in  our  nature,  as  to  be 
come  all-prevailing  political  forces.  In  accounting  for 
the  constitutional  events  of  those  times,  we  must 
never  let  these  principles  get  out  of  sight,  and  they 
should  be  as  carefully  kept  in  view  in  observing  the 
formation  of  parties. 

Akin  to  these  sentiments  was  the  dread  of  standing 
armies,  the  aversion  to  class,  and  particularly  to  such 
distinction  as  was  hereditary.  This  sentiment  had  its 
origin  in  the  democratic  nature  of  society,  but  it  is  to 
be  observed  that  this  aversion  was  not  manifested  to 
wards  such  classes  only  as  were  hereditary,  or  of  an 
aristocratic  nature.  The  favoring  of  any  set  of  people 
as  a  class,  whether  from  economical  reasons,  such  as 
the  necessity  of  stimulating  trade,  or  from  political 
notions,  as  for  instance  a  class  of  office  holders,  was 
equally  obnoxious.  The  worst  of  all  classes  were  "  the 
artificial  classes."  As  for  the  doctrine  of  "  church 
and  state,"  though  fear  of  its  establishment  in  practice 
never  was  general,  and,  at  the  period  of  our  Revolu 
tion,  had  long  ceased  to  have  any  real  vitality  even  in 
the  localities  where  the  church  had  been  established, 
nevertheless,  the  apprehension  of  an  intention  to  im 
pose  the  establishment  upon  the  colonies,  was  an  im 
portant  motive  of  revolt. 

Thus  the  opponents  of  the  administration  were 
composed  of  those  whose  attachments  to  the  principle 
of  local  self-government  led  them  to  contest  the  mere 
appearance  of  encroachment ;  the  great  debtor  class ; 
and  the  small  agriculturists  and  traders  of  the  North 

O 

and  the  great  planters  of  the  South. 

It  is  not  to  be  supposed  that  sections  of  the  country 


MISTAKES   OF  THE  FEDERALISTS.        151 

or  that  classes  of  the  community  acted  in  mass.  The 
same  anomalies  which  strike  us  to-day  were  apparent 
then  :  Madison,  the  Father  of  the  Constitution,  be 
came  a  leader  of  the  anti-Federalists,  as  did  Han 
cock,  a  representative  of  the  commercial  and  moneyed 
classes.  It  is  not  an  anomaly,  that  Samuel  Adams, 
who  had  opposed  the  pretensions  of  the  British  Parlia 
ment  so  bitterly,  should  resist  an  administrative  policy 
which  enroached  upon  the  rights  of  the  states,  nor 
that  the  mass  of  the  disbanded  army  which  had  been 
moved  by  the  same  impulses  that  actuated  this  leader, 
should  be  found  upon  the  popular  side. 

When  we  consider  the  constituents  of  the  two  par 
ties,  we  cannot  but  conclude  that  the  opposition  had 
the  greater  supplies  to  draw  upon,  both  in  votes  and 
in  popular  principles.  In  fact,  had  not  the  Federalists 
been  especially  favored  by  circumstances,  it  is  safe  to 
say  that  they  never  would  have  obtained  possession  of 
the  government.  They  rode  into  power  upon  the 
Constitution,  against  which  anti-federalism  had  not 
been  generally  organized ;  and  the  adoption  of  this 
instrument  was  due  quite  as  much  to  fortuitous  cir 
cumstances  as  to  its  merits.  In  the  first  place,  such 
was  the  public  distress  and  such  the  necessity  of 
speedy  relief,  that  men  were  not  disposed  to  judge  a 
reasonable  frame  of  government  censoriously,  but 
were  ready  to  accept  any  good  thing  which  the  gods 
should  send  them ;  next  there  had  not  been  time  suf 
ficient  for  the  transformation  of  the  skeptical  and 
halting  into  active  opponents  ;  again,  positive  opposi 
tion  was  sporadic  both  in  locality  and  class,  while  the 
advocacy  of  the  Constitution,  pressed  with  force  and 
brilliancy,  was  organized  and  acting  in  perfect  con- 


152  THE   FORMATION   OF  PARTIES. 

cert ;  finally,  "  Shay's  Rebellion  "  turned  the  scale  in 
the  nick  of  time.  The  Constitution  thus  brought  the 
Federalists  as  an  organization  along  with  it,  and  had 
their  self-restraint  and  skill  been  equal  to  the  situation, 
no  reason  is  apparent  why  their  possession  of  the  ad 
ministration  should  not  have  continued  for  a  genera 
tion.  As  it  was,  they  were  in  power  for  twelve  years 
only,  and  it  is  clear  that  they  had  not  been  supported 
by  public  sentiment  for  a  number  of  years  previous  to 
their  fall.  The  reason  of  this  is,  that,  while  organiz 
ing  the  government,  they  neglected  to  organize  public 
opinion.  Long  before  they  reached  the  point  of  de 
fying  this  opinion,  they  had  lost  the  right  to  expect 
its  support  by  a  series  of  measures  which  manifest 
anything  but  skill  in  popular  government  or  regard 
for  popular  sensitiveness.  Blame  should  not  be  at 
tached  to  them  for  the  unpopularity  of  measures 
which  were  positively  demanded  by  the  needs  of  gov 
ernment,  and  yet  were  exceedingly  onerous  to  be  borne ; 
but  even  the  most  centralized  of  governments  are  not 
above  feeling  the  public  pulse  and  of  conforming 
themselves  to  its  beats,  and  this  the  Federalists  did 
not  do.  The  Constitution  having  been  accepted  and 
inaugurated,  they  were  seized  with  the  impulse  to 
strain  its  provisions  to  the  utmost,  and  they  rode  it  to 
death.  The  funding  of  the  debt  was  accompanied  by 
jobbery  for  which  the  Treasury  was  not  directly  re 
sponsible,  but  by  which  it  was  tainted  ;  the  assump 
tion  of  the  state  debts,  which  certainly  could  have 
been  delayed  until  authorized  by  a  constitutional 
amendment,  was  pressed  with  a  rough  hand  in  the 
teeth  of  state  protest ;  the  incorporation  of  the  Bank 
was  driven  to  a  successful  conclusion,  though  its  ad- 


FEDERAL  DISTRUST  OF  THE  PEOPLE.    153 

vocates  had  failed  to  prove  it  "  necessary,"  and  in 
spite  of  the  manifest  coolness  of  the  President  towards 
the  project ;  the  excise  bill  occasioned  an  "  insurrec 
tion,"  which,  to  say  the  least,  did  not  incur  unquali 
fied  reprobation  in  the  capital  of  the  state  where  it 
occurred,  or  even  among  all  the  colleagues  of  the  Sec 
retary  of  the  Treasury  himself.  Either  the  art  of 
governing  had  not  yet  become  familiar  to  Hamilton, 
or  it  was  defied. 

In  addition  to  these  unpropitious  measures,  the  tone 
of  the  Federalists  was  not  assuring  to  those  who  con 
sidered  the  Constitution  a  popular  work,  and  one 
which  had  been  created  for  the  people,  without  class 
or  distinction.  Irritated  by  persistent  opposition, 
Hamilton  was  betrayed  more  than  once  into  express 
ing  lack  of  faith  in  the  Constitution,  and  distrust  of 
public  opinion  as  a  governmental  force.  That  men 
were  "  reasoning  rather  than  reasonable  "  beings,  was 
not  a  novel  idea  ;  in  fact  every  government  hereto 
fore  had  been  founded  upon  the  assumption  that  the 
masses  were  unequal  to  the  task  of  self-government, 
and  therefore  that  the  many  should  be  controlled  by 
the  few.  But,  rightly  or  wrongly,  the  people  believed 
that  they  did  possess  capacity  for  self-government, 
that  the  Constitution  expressed  this  belief,  that  now 
or  never  was  the  time  to  put  it  to  trial,  and  that  the 
administration  should  not  be  in  the  hands  of  those 
who  were  not  willing  to  make  the  experiment.  Thus 
the  reluctance  to  adopt  the  Constitution  by  those  who 
feared  its  effects  upon  their  local  self-government, 
gave  way  to  a  general  disposition  to  give  the  Consti 
tution  a  fair  trial,  and  thus  the  very  men  who  had 
been  lukewarm,  became  its  earnest  supporters  :  as  the 


154  THE  FORMATION  OF  PARTIES. 

faith  of  the  Federalists  in  the  Constitution  waned, 
popular  faith  in  it  waxed  in  strength.  The  people 
saw  the  opportunity  for  testing  their  capacity  for  gov 
ernment  outside  of  petty  localities  and  were  deter 
mined  to  take  advantage  of  it.  How  disappointing, 
not  to  say  alarming,  -were  expressions  indicating  lack 
of  sympathy  with  this  vital  movement,  need  not  be 
dwelt  upon.  Nothing  facilitated  among  the  people 
everywhere  the  formation  of  a  feeling  antagonistic  to 
ultra-federalism  so  much  as  this  tone  of  distrust  and 
the  consciousness  of  class  distinction,  and  thus  the 
masses  became  ready  for  opposition  to  the  administra 
tion.  It  was  unfortunate  too,  that  during  the  first 
days  of  Congress  it  should  have  been  brought  into 
close  contact  with  these  sentiments  in  New  York,  the 
former  stronghold  of  Toryism. 

Another  cause  of  adverse  feeling  against  the  Feder 
alists  was,  that  their  notion  of  the  central  government 
was  not  objective  enough  to  strike  the  popular  eye. 
A  government  which  is  construed  into  existence  evi 
dently  exists  in  the  mind  only  ;  and  a  popular  govern 
ment  expects  too  much  when  it  demands  fealty  to 
what  it  cannot  present  to  the  senses.  Moreover  it  vio 
lates  the  first  maxim  of  governmental  constitution  — 
that  though  authority  should  be  rather  felt  than  seen, 
the  source  of  authority  must  be  obvious  and  apparent 
and  be  something  upon  which  hands  can  be  laid.  Ac 
cordingly  when  the  people  were  told  that,  to  all  in 
tents  and  purposes,  they  were  a  nation  before  they 
had  reconciled  themselves  to  the  idea  of  becoming  one, 
that  this  nation  was  invested  with  sovereignty,  that 
the  whole  people  of  the  United  States  was  already  a 
political  power  distinct  from  the  states,  or  the  people 


NEED   OF  FIXED  FOREIGN  POLICY.       155 

of  the  states,  and  "  that  the  residuary  sovereignty  of 
each  state "  was  all  that  remained  to  the  people  of 
this  state,1  they  naturally  inquired  what  this  "  re 
siduary  sovereignty  of  each  state  "  was,  and  were  an 
swered,  that,  according  to  the  terms  of  their  compact, 
it  was  the  unenumerated  powers,  but  that  by  the  oper 
ation  of  liberal  construction,  these  had  been  reduced 
already,  and  what  would  be  left  in  the  future,  the 
future  only  would  disclose. 

During  the  early  days  of  Washington's  administra 
tion,  public  attention  had  been  concentrated  upon  the 
organization  of  the  government  and  the  establishment 
of  a  fiscal  policy.  Domestic  affairs  had  occupied  the 
energies  of  the  country  to  the  exclusion  of  almost 
everything  else.  External  affairs,  in  the  meantime, 
had  been  steadily  assuming  a  shape  which  soon  called 
for  a  definite  and  stable  foreign  policy.  A  new  being 
appearing  for  the  first  time  within  the  circle  of  the 
great  powers,  could  not  long  avoid  giving  an  answer 
to  the  question,  What  is  to  be  your  attitude  towards 
us,  and  what  the  principles  upon  which  you  will  con 
duct  your  foreign  affairs  ?  This  question  had  peculiar 
significance,  inasmuch  as  unfamiliar ity  with  our  con 
stitution  caused  doubt  in  the  minds  of  foreign  powers 
as  to  where  the  ultimate  sovereignty  of  our  system  lay. 
This  unfamiliar  shape  needed  explanation,  and  no  one 
could  give  it  but  itself.  The  events  then  progressing 
in  the  old  world  urged  a  speedy  determination.  The 

1  Chisholm  v.  Georgia,  2  Dallas,  471.  As  to  the  leading-  defects  of 
the  Constitution,  and  objections  to  the  Constitution,  see  Story,  Consti 
tution,  Book  II.  chap,  iv,  sect.  248  et  seq.,  and  Book  III,  chap.  ii. 
Also  Address  of  the  minority  in  the  Pennsylvania  Convention,  2 
Amer.  Museum,  536,  543,  544,  545 ;  Address  of  Virginia,  2  Pitkin, 
334. 


156  THE  FORMATION  OF  PARTIES. 

policy  adopted  by  Great  Britain  in  reference  to  our 
navigation  and  commerce,  was  daily  presenting  ques 
tions  and  assuming  a  tone  which  could  not  be  ignored, 
and  the  French  Revolution,  fast  running  a  course  of 
which  the  end  and  its  results  could  not  be  prognosti 
cated,  added  to  the  complications  of  the  family  of  na 
tions  and  increased  the  perplexity  of  our  department 
of  Foreign  Affairs.  Were  our  government  completely 
organized  and  had  our  trade  beyond  seas  been  recu 
perated,  the  task  of  the  Secretary  of  State  would  not 
have  proved  so  difficult.  But  the  government  was 
not  yet  completely  organized,  nor  was  trade  upon  a 
sound  foundation  ;  a  foreign  policy  should  be  founded 
upon  fixed  domestic  conditions,  and  order  and  settled 
principle  should  be  first  established  at  home.  Such 
was  not  the  case,  but  had  it  been  so  and  had  a  definite 
policy  been  determined  upon,  there  was  nothing  where 
with  to  enforce  it ;  no  navy  existed  to  protect  our 
rights  upon  the  high  seas,  no  army  had  taken  the 
place  of  that  which  had  been  disbanded,  and  our 
northern  frontier  was  still  occupied  by  British  troops. 
Thus,  without  the  means  of  making  good  a  policy,  and 
with  a  late  enemy  still  keeping  a  foothold  upon  the 
soil,  the  Secretary  of  State  was  not  in  a  position  to 
assert  a  positive  foreign  policy.  Circumstances,  to 
say  the  least,  were  such  as  were  liable  to  change  at 
any  moment,  and  with  them  the  policy  which  they 
supported. 

With  the  assemblage  of  two  national  Houses,  one 
of  which  represented  the  people  themselves,  the  strife 
of  local  interests  and  of  governmental  principles, 
which  had  manifested  itself  in  the  state  legislatures, 


THE  FIRST  CABINET.  157 

the  constitutional  Convention,  and  the  ratifying  Con 
ventions,  was  transferred  to  the  First  Congress. 

Nothing  could  be  more  propitious  for  party  devel 
opment  than  the  composition  of  the  first  cabinet. 
President  Washington,  alive  to  the  necessity  of  unit 
ing  in  his  cabinet  intelligence  in  the  constructive 
administration  of  internal  affairs,  and  skill  in  the 
management  of  foreign  affairs  such  as  would  steer  the 
young  republic  safely  through  thickening  complica 
tions,  had  called  Alexander  Hamilton  to  the  Secretary 
ship  of  the  Treasury  and  Thomas  Jefferson  to  that  of 
State.  As  far  as  efficiency  for  their  duties  is  concerned, 
no  better  selection  could  be  made,  and,  doubtless,  the 
President  aimed  at  the  moral  effect  which  would  be 
produced  by  the  harmonious  cooperation  of  two  men 
who  represented  dissimilar  notions  of  government. 
Everything  was  yet  to  be  done  ;  the  country  was  not 
even  free  from  the  presence  of  its  late  foes,  for  the 
northern  military  posts  were  still  occupied  by  British 
garrisons,  and  the  unhappy  and  distressed  people, 
sunk  in  poverty  and  despair,  was  torn  by  conflicting 
factions.  It  was  reasonable  to  suppose  that  the  spec 
tacle  of  representatives  of  different  sections  and  of 
differing  principles  uniting  their  energies  in  common 
effort  for  the  general  welfare  would  exert  a  salutary 
influence  upon  the  factions,  and  tend  towards  calming 
the  popular  temper.  Whatever  the  motive  of  the 
President,  it  is  now  easily  to  be  seen  that  nothing 
better  could  have  been  devised  to  effect  the  evolution 
of  parties.  The  inevitable  course  which  opposing 
notions  in  politics  pursue  was  speedily  taken  :  two 
sets  of  doctrines  began  to  define  themselves,  then  to 
form  into  systems,  and  at  last  to  oppose  each  other. 


158  THE  FORMATION  OF  PARTIES. 

Public  sentiment  kept  pace  with  tins  formative  process, 
and  men  ranged  themselves  on  one  side  or  the  other ; 
so  that,  when  the  first  presidential  term  had  closed, 
two  great  parties  had  already  absorbed  the  diverse 
factions,  and,  confronting  each  other,  were  ready  to 
contend  for  the  possession  of  the  national  government. 

Never  did  a  field  offer  more  important  subjects  for 
diversity  of  sentiment ;  never  were  times  richer  in  op 
portunity  ;  never  were  leaders  better  fitted  for  party 
organization  ;  and  never  was  a  people  upon  whom  the 
necessity  of  making  choice  of  principles  pressed  more 
heavily,  or  whose  ardor  for  practical  politics  exceeded 
that  of  the  Americans.  Time  and  circumstance  com 
bined  in  affording  the  opportunity ;  the  character  of 
the  leaders  and  the  disposition  of  the  people  called 
every  element  and  quality  into  play. 

The  debates  in  the  constitutional  Convention  had 
brought  out,  with  startling  distinctness,  reluctance  to 
innovation  and  absolute  sincerity  in  the  effort  to  cre 
ate  an  enduring  polity.  Necessity  compelled  union, 
and,  though  the  popular  majority  which  decided  the 
adoption  of  the  Constitution  was  not  great  enough  to 
assure  confidence,  the  acquiescence  which  followed  re 
vealed  the  general  feeling  that,  now  that  the  Consti 
tution  had  been  adopted,  it  should  have  a  fair  trial. 
The  administration,  consequently,  entered  upon  the 
task  of  governmental  organization  sustained  by  a  sen 
timent  which,  if  not  heartily  sympathetic  with  it, 
was  by  no  means  adverse  to  the  experiment.  At  all 
events,  there  was  no  organized  and  effective  obstruc- 
tiveness  for  it  to  encounter. 

Jefferson,  at  the  outset,  was  absent  from  the  coun 
try,  being  on  his  homeward  journey  from  France, 


THOMAS  JEFFERSON.  159 

where,  during  the  past  five  years,  he  had  represented 
the  United  States  as  minister.  He  had  left  home  the 
year  following  the  peace,  and  before  the  illusions 
which  came  with  it  had  given  way  to  realities  more 
bitter  than  the  war  itself  had  been.  Distant  from  the 
depression  and  distress  into  which  the  country  had 
sunk,  his  knowledge  of  internal  affairs  had  been  ob 
tained  only  from  his  official  and  private  correspond 
ence,  and  from  the  journalistic  reports  which  were 
common  to  all.  He  had  taken  no  part  in  the  making 
of  the  Constitution,  and  his  views  of  this  instrument 
were  unclouded  by  the  agitation  which  personally 
affected  its  framers.  The  only  constitution-making, 
indeed,  with  which  he  had  had  anything  to  do  had 
been  confined  to  suggestions  offered  by  him  from  time 
to  time,  on  request  of  various  leaders  of  the  French 
Revolution  which  was  then  in  progress  under  his  eyes, 
and  with  which  he  heartily  sympathized.  He  could, 
therefore,  consider  the  Constitution  of  the  United 
States,  not  only  with  the  judgment  of  one  who  had, 
all  his  life,  reflected  deeply  upon  the  nature  and 
structure  of  governments,  but  also  with  the  cool  criti 
cism  of  a  bystander.  One  thing  only  might  affect 
this  judgment  unduly,  and  this  was  that  his  predilec 
tion  for  making  the  rights  of  the  individual  the  begin 
ning  and  the  end  of  all  government  had  become  ex 
travagant  from  his  sympathy  with  the  French  people 
in  their  struggle  against  absolutism.  There  can  be 
no  doubt  that  Jefferson  brought  home  with  him  an 
abhorrence  of  everything  monarchical  and  aristocratic, 
and  that  he  was  disposed  to  view  any  measure  which 
was  not  altogether  popular  in  its  nature  as  a  step 
towards  absolutism.  If  his  interest  in  the  success  of 


160  THE  FORMATION   OF  PARTIES. 

the  Constitution  was  devoid  of  the  enthusiasm  which 
naturally  appeared  in  many  of  the  men  who  had  had 
a  hand  in  its  making,  hostility  to  it  was  not  harbored 
by  him.  The  mental  force  of  the  man  elevated  him 
above  the  trivial  objections  which  had  been  urged 
against  its  adoption,  and,  though  it  possessed  fea 
tures  which  did  not  altogether  suit  him,  he  was  ready 
to  give  it  a  fair  trial.  His  disposition  towards  the 
Constitution,  then,  may  be  deemed  fairly  favorable, 
and  this  disposition  had  been  strengthened  by  no  less 
an  advocate  than  James  Madison,  who,  while  keeping 
him  thoroughly  informed  of  its  progress,  from  incep 
tion  to  adoption,  had  explained  away  objections,  and 
had  advanced  arguments  in  its  favor,  which  his  quick 
and  comprehensive  mind  had  readily  accepted.  The 
Constitution,  therefore,  may  be  said  to  have  success 
fully  passed  his  scrutiny,  and  to  have  been  accepted 
by  him,  not  as  a  mere  relief  from  present  ills,  but  as 
an 'organic  structure  which  was  to  be  perpetual.  It 
may  be  considered  as  a  substantial  advantage  that 
the  first  administration  had  among  its  members  one 
whose  character  and  intellect  were  of  such  high  order, 
yet  whose  judgment  of  the  Constitution  was  unbiassed 
by  the  prejudices  of  a  partisan.1 

1  When  Jefferson,  in  the  spring  of  1790,  returned  from  France,  he 
found  that  which  is  now  the  Democratic  Party  a  body  with  a  code 
of  principles,  and  active  in  the  performance  of  its  functions.  It 
lacked  much  of  being1  a  fully  developed  party,  for  its  organization  was 
not  complete,  its  discipline  was  imperfect,  it  had  no  leader,  and  it  was 
nameless :  yet,  for  all  this,  it  was  a  party,  for  what  organization  it 
had  carried  it  beyond  the  mere  faction,  discipline  would  certainly 
come  in  time,  and  so  would  a  leader  and  a  name,  and,  above  all,  it 
had  principles,  —  definite,  clear,  authoritative,  and  exacting  princi 
ples  ;  moreover,  it  had  the  enthusiasm  of  the  neophyte,  and  the  pro- 
pagandism  which  offers  to  the  doubter  the  choice  between  the  Koran 


ALEXANDER  HAMILTON.  161 

Hamilton,  on  the  other  hand,  appeared  upon  the 
scene  in  a  quite  different  character.  He  came  a  vic 
tor,  fresh  from  a  struggle  which  had  riveted  upon 
him  the  eyes  of  the  whole  country,  and,  from  the  be 
ginning  of  what  appeared  to  be  a  hopeless  contest, 
down  to  its  triumphant  conclusion,  he  had  sustained 
himself  with  force  and  brilliancy  which  have  had  no 
parallel  in  our  history  since  that  day.  If  any  single 
being  can  be  said  to  have  secured  the  adoption  of  the 
Constitution,  he  was  the  man.  His  duties  in  his  state 
had  abridged  his  action  in  the  Convention  ;  but,  no 
sooner  had  the  Constitution  been  given  to  the  people, 
than  he  began  a  course  of  advocacy,  which,  had  there 
been  nothing  else  to  mark  his  career,  would  have 
made  him  one  of  the  most  distinguished  men  of  his 
generation.  He  at  once  took  up  his  pen,  and  to  him, 
more  than  to  any  other,  we  owe  "  the  Federalist." 
It  was  in  securing  the  adoption  of  the  Constitution 
by  his  own  state  that  he  became,  for  a  time,  the  most 
conspicuous  man  in  the  land.  The  opponents  of  the 
Constitution  might  almost  be  said  to  have  been  im- 
pregnably  entrenched  in  New  York.  Few  men  ever 
have  attained  the  control  of  a  locality  such  as  George 
Clinton  then  had  of  that  state,  and  his  defiance  of 
the  Constitution  and  its  advocates  was  anything  but 
bravado.  When,  then,  in  the  midst  of  the  discussion, 
or  rather  struggle,  the  leader  of  the  opposition  to  the 
Constitution,  Melancthon  Smith,  announced  his  radi 
cal  and  total  conversion  to  its  adoption,  great  was  the 

and  the  bowstring.  The  party  had  already  been  "  founded,"  and  was 
awaiting  a  leader  and  a  name  only,  before  emerging  from  immatur 
ity  and  setting  forth  upon  the  career  of  conquest  which  was  to  carry 
it  into  power  by  "  the  Revolution  of  1800." 


162  THE  FORMATION  OF  PARTIES. 

sensation  throughout  the  country;  and  greater  still 
the  joy  of  the  Federalists,  as  the  friends  of  the  Con 
stitution  were  styled,  when  Hamilton  presented  him 
self  before  Congress  with  the  ratification  by  New 
York.  His  appearance  in  the  Cabinet  was  justly  re 
garded  as  that  of  one  to  whom  the  inauguration  of 
the  Constitution  and  the  care  of  its  fortunes  had  been 
especially  entrusted.  However  lukewarm  or  adverse 
to  it  others  might  be,  he  was  universally  regarded  as 
its  friend  and  supporter,  and  one  whose  personality 
was  linked  with  its  success  or  failure.  In  looking 
back  upon  those  times,  it  cannot  be  denied  that  the 
President,  in  committing  its  destiny  to  one  so  identi 
fied  with  its  fate,  acted  wisely.  If  the  Constitution 
was  worth  trying  at  all,  its  fortunes  should  be  con 
fided  to  those  who  would  see  that  the  trial  was  a  fair 
one  ;  nor  can  it  be  regarded  as  anything  but  fortunate 
that  the  Cabinet  should  contain  two  men,  one  of  whom 
would  strain  every  nerve  and  encounter  every  hazard 
to  give  the  new  government  an  advantage  at  the  out 
set,  while  the  other  would  be  disposed  to  let  it  win  its 
way  upon  its  merits. 

The  difference  in  character  between  these  men 
could  hardly  fail  to  impress  itself  upon  their  ad 
herents  ;  but  it  was  the  difference  in  their  principles 
which  eventually  decided  the  character  of  the  parties 
they  were  to  lead.  It  is  to  be  seen  already,  in  the 
Federalist,  that  Hamilton  had  declared  the  great 
necessity  of  the  hour  to  be  a  government  which 
should  act  upon  the  individual  citizen,  and  not  solely 
upon  the  states  in  their  corporate  capacity  ;  and  it  is 
also  to  be  seen  that  it  is  this  characteristic  which 
chiefly  distinguishes  the  Constitution  from  the  Arti- 


ADVERSE  PRINCIPLES   OF  THE  LEADERS.    163 

cles  of  Confederation.1  Nothing  showed  the  differ 
ence  between  the  two  leaders  more  than  the  views 
entertained  by  them  in  this  respect :  Hamilton's  opin 
ion  being  that  the  direct  action  of  the  central  govern 
ment  upon  the  citizen  was  too  restricted ;  Jefferson's, 
that  it  went  too  far.  While  Hamilton  considered 
government  to  be  the  energy  of  a  fully  developed  body 
politic  acting  upon  the  citizen  as  a  means  to  an  end 
present  to  the  common  will,  Jefferson  looked  at  gov 
ernment  as  the  means  whereby  the  end  present  to  the 
majority  of  individual  wills  should  be  attained.  The 
individual  was  the  political  entity  to  Jefferson  ;  to 
Hamilton,  the  state.  This  state,  in  Hamilton's  eyes, 
was  the  central  government,  the  one  recently  created 
by  the  delegation  of  sovereign  powers  of  the  many. 
In  proportion  as  this  waxed,  the  others  waned,  and  he 
recognized  nothing  to  be  the  equal  of  that  in  which 
reposed  the  powers  of  greatest  magnitude.  Number 
of  powers  was  much  to  him ;  magnitude  of  power  was 
still  more.  The  government  which  made  war  and 
peace,  which  stood  before  kings  and  treated  with 
them,  and  whose  heavy  hand  was  felt  to  the  utter 
most  parts  of  the  earth,  this  was  the  real  and  superior 
government.  Not  so  thought  Jefferson  ;  to  him,  that 
which  related  to  the  soil  was  greatest,  and  the  crea 
ture  which  sprang  from  its  dust  was  superior  to  the 
one  which  owed  its  being  to  the  breath  of  men,  and 

"  The  powers  of  a  general  government,  either  of  a  legislative  or 
executive  nature,  or  which  particularly  concerns  treaties  with  foreign 
powers,  do  for  the  most  part  (if  not  wholly)  affect  individuals  and  not 
states  :  they  require  no  aid  from  state  authorities.  This  is  the  great 
leading  distinction  between  the  old  Articles  of  Confederation  and  the 
present  Constitution."  Chisholm  u.  Georgia,  2  Dallas,  435,  Iredell,  J. 
See  also,  ante,  pp.  9,  101,  105, 117,  118. 


164  THE  FORMATION   OF  PARTIES. 

which,  almost  invisible  and  intangible,  dwelt  in  the 
minds  of  men  only  and  was  expressed  in  the  fading 
characters  which  were  traced  on  parchment.  The 
end  of  government  was  the  greater  good  of  man,  and 
what  concerned  his  welfare  was  the  real  motive  of 
politics.  What  was  government  but  the  control  and 
regulation  of  the  citizen  by  himself  ?  and  how  could 
this  self-control  be  exercised,  but  by  his  possession  of 
the  powers  natural  to  him  ?  Why  should  one  man 
ever  rule  another  ;  and  why  should  government  rec 
ognize  a  condition  beyond  that  which  was  necessary 
for  the  common  good?  To  Jefferson,  therefore,  the 
acquisition  of  power  and  of  security  and  tranquillity, 
at  the  cost  of  personal  liberty,  was  not  only  a  shock 
ing  doctrine,  but  was  an  anomaly  and  contradiction 
which  his  mind  refused  to  entertain.  What  advan- 
tageth  it  the  master,  that  his  servant  be  greater  than 
he  ?  and  what  the  glory  of  standing  before  kings,  if 
one  stand  clothed  with  powers  not  his  own  ?  The 
true  glory  of  government  lay  in  its  efficacy  to  develop 
the  individual,  not  in  its  display  of  power.  What 
ever  concerned  the  individual,  this  only  was  the  sub 
ject  of  government ;  whatever  concerned  his  welfare, 
this  only  should  rouse  it  to  action.  The  life-work  of 
the  citizen  lay  at  home,  within  sight  and  sound  of  his 
door,  and  the  real  object  of  government  was  to  see  that 
he  was  let  alone.  The  right  to  be  tried  by  a  jury  of 
his  peers,  to  have  his  speech  free,  his  person  sacred, 
the  thousand  rights  and  powers  which  cluster  around 
his  hearth,  these  were  the  true  objects  of  government, 
and  the  least  of  them  outweighed  the  splendor  of  the 
greatest  combination  of  forces  men  were  capable  of. 
Thus,  the  very  element  which  distinguished  this  Con- 


LOCAL   SELF-GOVERNMENT.  165 

stitution  from  its  predecessor,  the  direct  action  of  the 
central  government  upon  the  citizen,  did  not  commend 
itself  to  him  as  a  feature  to  be  accepted  without  ques 
tion,  and  to  be  urged  without  restraint;  but  it  ap 
peared  rather  as  one  not  exempt  from  criticism,  and 
as  one  not  to  be  acted  upon,  unless  it  were  under  the 
control  and  mastery  of  the  individual  himself.  The 
want  of  such  a  principle  had  demonstrated  itself 
under  the  Articles  of  Confederation,  and  such  a 
governmental  force  would  have  to  be  accepted  ;  but, 
with  Jefferson,  acceptance  meant  toleration  ;  its  exer 
cise  must  be  subject  to  limitations  defined  and  im 
movably  established,  and  the  occasion  of  its  applica 
tion  must  be  one  which  was  obvious  and  unmistakable, 
and  against  which  argument  was  in  vain.  When  it 
acted,  it  should  act  as  a  servant  acts  for  its  master. 

Such  being  the  radical  difference  between  the  views 
of  government  entertained  by  these  men,  it  is  easy  to 
see  that  ancient  local  self-government  spoke  through 
Jefferson,  and  that  centralization  of  powers  in  a  gov 
ernment  superior  to  the  local  organisms  found  utter 
ance  through  Hamilton.  Each  of  these  men,  in 
course  of  time,  was  wrought  to  the  pitch  of  believing 
and  averring  that  his  opponent  would  surely  bring 
about  anarchy  or  despotism  ; 1  and  it  can  hardly  be 
disputed,  if  the  principles  of  either  should  go  to  an 
extreme,  that  the  failure  of  the  Articles  of  Confedera 
tion  might  be  repeated,  or  that  such  centralization  of 

1  The  accusations  of  the  Jeffersonians  have  been  regarded  as  the 
merest  political  vituperation.  They  were  not  so  ;  they  went  to  an  un 
warrantable  extent,  it  is  true,  but  they  were  made  earnestly.  The 
Jeffersonians  looked  on  the  Hamiltonian  policy  as  setting-  at  naught 
the  goodness  in  man,  and  as  deliberately  substituting-  for  it  evil  as  a 
principle  of  government. 


166  THE  FORMATION  OF  PARTIES. 

power  in  the  general  government  might  ensue,  as 
would  terminate  at  last  in  the  subversion  of  local 
self-government  and  the  substitution  of  irresponsible 
authority.  Though  the  possibilities  of  doctrines  are 
never  to  be  lost  sight  of,  few  are  the  Americans  of 
the  present  generation  who  could  harbor  the  belief 
that  either  of  these  men  was  what  his  opponent  fancied 
him  to  be  :  that  the  man  who  wrote  the  Declaration 
of  Independence  and  insisted  on  a  Declaration  of 
Rights  could  entertain  political  principles  which  were 
certain  to  end  in  anarchy ;  or,  that  the  man  who  wrote 
the  Federalist  and  did  so  much  for  the  adoption  of 
the  Constitution  was  striving  to  bring  about  a  con 
solidation  of  the  states  and  the  establishment  of  an 
all-powerful  despotism !  Nevertheless,  the  bitterness 
and  prejudices  of  the  day  have  made  themselves  felt 
in  government  at  all  times,  and  their  presence  cannot 
be  ignored  during  a  period  when  monarchists  in  our 
midst  still  hoped  for  the  subversion  of  democracy,  and 
when  the  youthful  "  Jacobins  "  of  Philadelphia  turned 
from  the  men  who  composed  the  Federalist,  to  take 
their  notions  of  politics  from  the  sans-cidottes  of  the 
Faubourg  St.  Antoine. 

The  doctrines  of  Jefferson  and  Hamilton  need  not 
be  pursued  to  the  extremities  which  it  is  improbable 
that  the  conservatism  of  the  people  will  ever  suffer 
them  to  reach.  They  have  been  in  active  operation 
for  a  century ;  they  have  controlled  the  administration 
and  legislation  of  a  country  which  has  multiplied  its 
population  many  times  over  ;  they  have  demonstrated 
their  power  to  effect  the  assimilation  of  diverse  races ; 
they  have  survived  foreign  and  civil  wars,  and  they 
are  still  confronting  each  other.  We  are  safe,  there- 


THE   OLD  SCHOOL.  167 

fore,  in  accepting  them  as  positive  and  enduring  ele 
ments  in  the  history  of  our  politics  down  to  the  civil 
war,  and,  adopting  them  as  political  creeds,  we  may 
observe  their  influence  upon  the  formation  of  the  two 
great  parties  in  the  United  States. 

The  two  ways  of  regarding  the  end  of  government 
had  divided  the  people  themselves,  and  had  rapidly 
assumed  the  characters  of  schools. 

One  of  these  schools  drew  its  inspiration  from  the 
past  and  rested  upon  experience.  It  took  the  position 
that  political  history  showed,  that  the  conflict  between 
good  and  evil  in  man  had  been  an  unceasing  one,  and 
that  government  should  recognize  it  by  maintaining 
from  the  beginning  strength  sufficient  to  overcome  the 
evil ;  but,  inasmuch  as  this  had  never  yet  been  thor 
oughly  accomplished,  that  the  evil  in  man  should  be 
so  far  recognized  as  to  turn  it  to  the  advantage  of  the 
state.  This,  they  claimed,  had  been  reached  by  the 
British  system  more  nearly  than  by  any  other  govern 
ment  since  the  days  of  the  Athenian  democracy  or 
those  of  the  Roman  Republic.  The  men  of  this  school 
took  the  world  as  they  found  it ;  and  they  pointed  to 
the  experience  of  the  British  empire,  wherein  the  cor 
ruptions  of  Walpole  and  his  successors  had  enured 
more  to  political  stability  than  had  the  experiments 
in  constitution-making  of  the  Commonwealth  ;  experi 
ments  which  had  been  rejected  finally  by  the  British 
people  in  favor  of  the  old  system  with  limitations. 
Therefore,  they  would  confine  themselves  to  tried  prin 
ciples  and  ancient  forms,  and  would  retain  the  British 
system,  but  would  have  it  purged  of  its  corruption  and 
divested  of  the  characteristics  and  methods  which 
were  incompatible  with  a  republic  and  a  federation, 


168  THE  FORMATION   OF  PARTIES. 

and  would  adapt  it  to  the  novel  conditions  existing  in 
a  new  country. 

Such  was  the  view  taken  by  the  Old  School :  it 
was  the  school  of  experience,  of  conservatism,  of  aver 
sion  to  change,  of  timidity,  and  of  content. 

The  New  School  looked  to  the  future  for  its  inspi 
ration,  and  placed  its  hopes  upon  experiment.  It 
caught  at  the  recognition  by  the  Old  School  of  evil  as 
a  governmental  force,  and  insisted  that  in  politics  fear 
of  evil  had  always  supplanted  faith  in  goodness,  and 
that,  in  consequence,  the  past  and  the  present  political 
systems  of  the  world  had  not  been  founded  upon  the 
strength  but  upon  the  weakness  of  man  and  his 
assumed  incapacity  to  govern  himself,  and,  hence,  that 
each  and  every  government  had  for  its  controlling 
motive  the  necessity  of  a  ruler.  This  school  rejected 
the  doctrine  of  original  sin,  and  reversed  the  ancient 
political  creed  :  it  would  have  for  the  corner-stone  of 
the  new  fabric  avowed  faith  in  the  capacity  of  man 
to  govern  himself,  and,  presuming  that  man  was  more 
good  than  bad,  and  that  the  development  of  the  good 
was  tantamount  to  the  suppression  of  evil,  it  would 
have  the  administration  of  the  government  act  upon 
the  assumption  that  men  were  strong  and  capable. 
This  school  extirpated  the  "  ruler  "  from  government ; 
it  maintained  that  government  was  not  a  science  sus 
ceptible  neither  to  new  ideas  nor  to  further  develop 
ment,  and  pigeon-holed  as  complete,  but  that  the 
history  of  the  colonies  themselves  proved  that  no  sci 
ence  had  been  more  generative  of  new  ideas  or  more 
productive  of  new  forms.  It  pointed  to  the  self-gov 
ernment  with  local  representation  which  Virginia  had 
acquired  within  twelve  years  of  its  foundation  ;  to  the 


THE  NEW  SCHOOL.  169 

representative  democracy  and  written  constitution  of 
Connecticut ;  to  the  toleration  of  Maryland  and  Penn 
sylvania  ;  to  the  freedom  of  conscience  and  of  speech 
in  Rhode  Island  ;  and  to  the  reservation  of  power  in 
the  people  of  New  Jersey.  All  of  these  innovations, 
it  asserted,  had  been  constituted  elements  of  govern 
ment  ;  all  had  been  adopted  on  the  assumption  that 
what  was  good  in  man  was  superior  as  a  governmental 
force  to  the  evil  that  was  in  him,  and  that  men  were 
capable  of  governing  themselves,  and  that  all  these 
instances  had  justified  this  assumption  by  their  long 
and  sorely-tried  experience. 

This  school  asserted,  further,  that  this  rich  growth 
of  political  principles  and  of  governmental  forms  was 
due  to  the  fact  that  the  predilection  of  the  colonist 
for  self-government  had  been  unrepressed  by  the  re 
mote  principles  and  forces  of  Europe  ;  that,  left  to 
itself,  its  expansion  had  been  natural  and  healthy,  and 
that,  the  same  conditions  still  existing,  new  develop 
ments  would  continue  to  appear.  If  these  things  had 
been  done  in  the  green  tree,  what  would  be  done  in 
the  dry  ?  Men  of  this  way  of  thinking  remembered 
that  Oxenstiern  had  told  his  son  that  the  world  was 
governed  too  much,  and  they  were  determined  that 
self-government  itself  should  not  govern  too  much. 
They  had  seen  the  colonies  rebel,  form  states,  combine 
and  carry  to  a  successful  termination  a  prolonged  de 
fence  against  the  greatest  of  earthly  powers,  and  do 
this  without  common  headship,  without  common  legis 
lation,  and  without  common  courts ;  and  thus,  from 
their  own  experience,  they  had  proof  beyond  question 
that,  to  a  free  people,  neither  "  a  ruler  "  nor  "  a  strong 
government  "is  necessary,  and  in  fact,  scarcely  any 


170  THE  FORMATION  OF  PARTIES. 

government.  They  insisted  that  the  Revolution  would 
prove  abortive,  were  it  to  stop  with  a  change  of  forms 
merely,  and  without  an  assertion  of  the  principles 
acted  upon  by  the  colonies,  and  without  a  way  left 
open  to  future  development. 

It  is  clear  that  this  school  did  not  reject  experience, 
but  that  it  regarded  the  experience  of  its  own  people 
as  a  new  dispensation  in  politics,  which  it  would  sub 
stitute  for  the  European  notions  of  government  hence 
forth  to  be  discarded.  It  was  radical  in  its  nature  ; 
and  it  was  the  school  of  hope,  of  faith  in  human 
nature,  of  experiment,  and  of  endeavor. 


CHAPTER  IX. 

THE    FORMATION   OF   PARTIES CONTINUED. 

Parties  form  on  Hamilton's  measures  —  Contrary  constructions  of  the 
Constitution ;  liberal  and  strict  construction  —  Madison  leads  the 
strict-constructionists  in  Congress  —  Personal  feeling1  —  Views  of 
Hamilton's  financial  policy  entertained  by  the  Jeffersonians  —  Ham 
ilton's  system  favored  a  plutocracy  rather  than  an  aristocracy. 

THE  inauguration  of  government  under  the  present 
Constitution  clearly  illustrates  the  normal  evolution 
of  parties.  So  vast  was  the  constructive  work  to  be 
done  thatj  when  Hamilton  assumed  the  Secretaryship 
of  the  Treasury,  he  became,  from  the  force  of  circum 
stances,  the  most  important  member  of  the  Cabinet. 
He  was,  as  long  as  the  Secretaryship  of  the  State  re 
mained  vacant,  the  head  of  the  administration,  and  he 
had  the  field  to  himself.  Possessed  with  the  notion 
that  the  government  of  the  United  States,  as  created, 
was  intended  to  be  supreme  in  the  functions  assigned 
to  it,  and  supreme,  too,  as  a  power  independent  and 
undelegated,  he  conceived  his  first  duty  to  be  to  in 
vest  it  as  soon  as  possible  with  this  character.  It 
is  true  that  the  powers  bestowed  upon  the  new  gov 
ernment  by  the  states  were  few,  and  that  these  had 
been  plainly  enumerated ;  but  a  constitution,  from 
its  very  nature  and  for  the  most  sagacious  reasons, 
he  conceived  to  be  but  a  frame  of  government,  a 
sketch,  which  legislation  and  custom  are  to  fill  in  as 
circumstances  require.  The  Constitution,  therefore, 


172  THE  FORMATION   OF  PARTIES. 

appeared  to  Hamilton  as  a  text  only  for  construction, 
and  he  maintained  that  this  construction  should  be  a 
liberal  one.  Within  the  narrow  corners  of  the  instru 
ment  lay  a  world  of  implied  powers,  which,  dormant, 
would  leave  the  government  limited  and  restricted, 
but  which,  active,  might  endue  it  with  unqualified  and 
unrestricted  sovereignty.  It  needed  but  the  breath 
of  liberal  construction,  and  internal  order  would  be 
evoked  from  chaos,  and  a  great  power  would  be  added 
to  the  family  of  nations. 

Hamilton  took  his  first  step  forthwith,  and,  in  spite 
of  opposition  from  the  states  which  found  no  warrant 
for  the  measure  in  the  Constitution,  the  federal  gov 
ernment  assumed  the  war  debts  of  the  several  states, 
consolidated  them  with  the  debt  of  the  old  govern 
ment,  and  funded  all  in  mass.  There  can  be  little 
question  that  Hamilton's  motives  in  introducing  this 
measure  were  not  restricted  to  fiscal  effects  only,  but 
embraced  political  effects,  under  the  belief  that  the 
consolidation  of  the  state  debts  with  those  of  the  gen 
eral  government  would  exert  a  cohesive  force  in  favor 
of  the  new  government,  by  organizing  the  public  cred 
itors  into  one  body  whose  interest  would  be  united 
with  that  of  the  administration  ;  perhaps,  too,  he 
found  in  this  scheme  a  wished-for  precedent  for  fur 
ther  advance  in  liberal  construction. 

Party  lines  began  to  define  themselves  in  the 
debate  which  followed  the  submission  of  this  plan  to 
Congress.  On  one  side,  members  spoke  of  "nation 
ality,"  and  were  sharply  reminded  that,  before  the 
Constitution  had  been  submitted  to  the  final  draft,  the 
word  "  national  "  had  been  in  sober  second  thought 
significantly  erased,  and  the  word  "  federal  "  written 


FEDERAL   INSTEAD   OF  NATIONAL.        173 

in  its  place.  The  position  was  taken  that,  to  exceed 
the  powers  enumerated  in  the  Constitution,  was  to 
exert  powers  which  had  not  been  granted  by  the 
states,  and  which,  consequently,,  were  still  retained  by 
them,  and  that  this  use  of  powers  belonging  to  other 
bodies  was  usurpation.  In  order,  therefore,  to  resist 
a  tendency  to  usurpation  so  manifest,  the  Constitution 
should  be  construed  strictly  ;  that  is,  that  the  central 
government  should  be  restricted  to  the  exercise  of 
such  powers  only  as  had  been  enumerated,  and  that 
these  powers  should  be  deemed  to  be,  what  the  Con 
stitution  expressed  them  to  be,  delegated.  In  this 
way  would  the  exercise  of  implied,  or,  as  they  were 
sometimes  styled,  "  incidental "  powers,  be  prevented, 
and  the  government  be  held  to  its  responsibility  as  an 
agent  in  its  exercise  of  enumerated  powers.  Virginia, 
through  her  legislature,  protested  against  the  assump 
tion  of  the  state  debts  on  the  ground  that  it  was  a 
violation  of  the  Constitution. 

The  assumption  of  the  debts  was  followed  by  a 
measure  which  heightened  the  alarm  already  taken  by 
the  anti-Federalists,  as  the  opponents  of  the  admin 
istration  were  still  inaptly  styled  ;  this  measure  was 
the  incorporation  of  the  Bank  of  the  United  States  in 
1780.  There  were  only  three  banks  at  that  time  in 
the  country,1  and  the  supply  of  specie  was  inadequate 
to  the  wants  of  commerce  and  the  government.  Ham 
ilton  took  advantage  of  these  conditions  to  advocate 

1  The  Bank  of  North  America  had  been  chartered  for  a  term  of 
ten  years  by  the  Congress  of  the  Confederation  in  1781 ;  but  in  con 
sequence  of  the  general  doxibt  of  the  power  of  Congress  to  do  so,  had 
been  chartered  also  by  the  legislature  of  Pennsylvania  in  1783  ;  this 
Pennsylvanian  charter  was  repealed  in  1785,  but  had  been  renewed 
in  1787. 


174  THE  FORMATION  OF  PARTIES. 

the  measure  on  the  ground  of  convenience.  He  was 
met  in  Congress,  however,  with  the  objection  that  the 
creation  of  a  bank  was  the  creation  of  a  corporation, 
and  that  the  power  to  incorporate  was  not  one  of  the 
powers  which  had  been  enumerated  ;  that  what  was 
not  enumerated  was  retained  by  the  states,  arid  that 
the  exercise  of  such  a  power  on  the  part  of  Congress 
was  an  encroachment  upon  one  of  the  reserved  rights 
of  the  states.  In  answer  to  this  it  was  asserted  that 
the  Constitution  must  contain  in  itself  everything 
necessary  to  carry  on  the  government,  otherwise  it 
would  be  a  nullity,  and  if  these  powers  were  not  ex 
pressed,  it  did  not  follow  that  they  were  any  less 
present,  or  that  the  duty  of  bringing  them  into  opera 
tion  was  any  less  imperative  ;  that  the  presence  of 
these  powers  was  signified  by  the  provision  which  be 
stows  capacity  "  to  make  all  laws  which  shall  be  neces 
sary  and  proper  for  carrying  into  execution  the  fore 
going  powers,  and  all  other  powers  vested  by  this 
constitution  in  the  government  of  the  United  States, 
or  in  any  department  or  official  thereof  :  "  1  that  a 
bank  is  a  necessary  and  proper  means  to  carry  on 
other  enumerated  powers,  and,  therefore,  that  Con 
gress  had  capacity  to  incorporate  the  bank.  It  was 
admitted  that  Congress  could  not  create  a  bank  for 
merely  general  accommodation,  but  it  was  asserted 
that  it  could  do  so,  if  the  primary  object  of  its  incor 
poration  was  to  subserve  the  purpose  of  the  govern 
ment.  The  opponents  of  the  measure  replied  that 
this  was  too  broad ;  for,  supposing  that  Congress 
might  sanction  the  means  for  executing  the  enumer 
ated  powers,  the  Constitution  has  expressly  restricted 

1  Article  I,  sect.  8,  cl.  17. 


THE  ENUMERATED  POWERS.  175 

these  means  to  such  as  are  "  necessary  and  proper." 
Let  it  be  granted  that  a  bank  is  proper,  it  does  not 
follow  that  it  is  necessary ;  the  most  that  can  be  said 
of  it  is  that  it  is  convenient ;  and  the  Constitution 
surely  cannot  regard  mere  convenience  as  a  reason  for 
the  exercise  of  doubtful  powers. 

It  is  evident  that  the  opposition  acquired  a  great 
advantage  over  the  Hamiltonians  at  the  outset,  for  it 
put  them  on  the  defensive.  The  Hamiltonians  had 
now  something  more  on  their  hands  than  mere  advo 
cacy  of  the  measure  ;  they  had  to  justify  its  right  to 
existence,  and  this  wore  the  air  of  an  apology  for 
presuming  to  appear.  In  the  end  this  proved  fatal  to 
the  Federalists.  The  Jeffersonians,  on  the  contrary, 
planted  themselves  upon  the  doctrine  that,  when  the 
states  had  granted  delegated  powers  which  they  were 
careful  to  enumerate,  and  had  reserved  all  others  in 
themselves,  it  was  contrary  to  right  reason  to  construe 
the  existence  in  the  Constitution  of  any  power  other 
than  those  enumerated ;  that  the  powers  in  question 
were  not  among  those  enumerated,  and,  holding  up 
the  Constitution,  they  defied  their  adversaries  to  point 
them  out.  This  being  an  impossibility,  the  Hamil 
tonians  were  driven  to  make  their  authority,  and  this 
they  attempted  to  do  by  asserting  the  right  to  con 
strue  into  existence  powers  which  had  not  been  ex 
pressed,  but  which  were  "  incidental "  to  those  enu 
merated,  and  which  were  necessary  and  proper  for  the 
exercise  of  such  powers.  The  Jeffersonians  admitted 
that  Congress  was  bound  to  provide  the  necessary  and 
proper  means  for  the  exercise  of  enumerated  powers, 
but,  1,  denied  the  right  to  establish  any  powers  by 
construction  ;  declaring  that  to  construe  powers  into 


176  THE  FORMATION   OF  PARTIES. 

existence  was  merely  a  way  of  making  another  Consti 
tution,  and  that  this  could  not  be  done,  inasmuch  as 
Congress  was  not  a  Convention ;  that,  2,  the  Hamil- 
tonian  argument  had  been  reduced  to  an  absurdity 
because,  failing  to  prove  the  measure  to  be  such  "  ne 
cessary  and  proper  "  means  to  an  enumerated  power, 
the  administration  had  been  driven  already  to  the 
argument  ex  conveniently  and  thus  that,  3,  the  states 
would  be  at  the  mercy  of  any  majority  in  the  federal 
legislature  which  was  disposed  to  take  counsel  of  con 
venience.  Notwithstanding  these  objections,  the  Treas 
ury  carried  its  point.  It  triumphed,  but  in  doing  so 
it  had  done  a  greater  thing  than  it  had  contemplated : 
it  had  given  its  opponents  a  bond  of  union  ;  it  had 
furnished  them  with  the  opportunity  to  define  the 
principle  of  their  opposition ;  it  had  supplied  them 
with  a  reason  for  being ;  and  it  had  helped  the  opposi 
tion  to  organize. 

A  significant  event  followed  the  exhumation  of  these 
implied  powers  :  James  Madison,  whose  part  in  the 
Convention  had  won  for  him  the  title  of  "  Father  of 
the  Constitution,"  openly  left  the  ranks  of  the  admin 
istration  and  joined  the  opposition.  Madison,  hitherto, 
had  supported  the  administration  heartily  in  its  work 
of  establishing  the  government  on  a  stable  foundation 
under  the  Constitution,  but  he  was  not  prepared  to 
establish  one  over  the  Constitution,  and  the  illimitable 
prospect  of  encroachment  by  the  central  government 
upon  the  reserved  rights  of  the  states  aroused  his  ap 
prehensions.  He  now  ranged  himself  with  those  who 
sought  to  curb  the  license  which  was  sure  to  result 
from  a  rule  of  interpretation  which  could  construe  into 
existence  any  power  desired  by  a  majority  of  the  legis- 


THE  IMPLIED  POWERS.  Ill 

lature.  His  action  was  taken  to  signify  that  the  chief 
framer  of  the  Constitution  did  not  regard  it  as  subject 
to  loose  construction,  and  henceforth  the  opposition 
was  not  compelled  to  content  itself  with  a  leader  in 
the  cabinet  only,  for  it  had  one  also  on  the  floor  of 
Congress. 

The  development  of  parties  is  clearly  revealed  by 
the  assumption  of  the  state  debts  and  the  incorpora 
tion  of  the  Bank  of  the  United  States.  Two  schools 
had  sprung  into  existence,  and  these  were  distin 
guished  by  their  modes  of  construing  the  Constitution. 
The  necessity  of  a  government  which  should  combine 
certain  powers  of  thirteen  peoples  into  efficient  action 
had  developed  the  notion  that  such  a  government 
should  act  directly  upon  the  individual.  To  do  this, 
it  had  been  necessary  that  the  different  sovereignties 
should  part  with  some  of  their  powers,  reserving  the 
rest,  and  that  the  peoples,  who  were  thus  subjected  to 
diminution  of  powers,  should  themselves  assent  to  the 
procedure.  This  done,  the  doctrine  arose,  and  was 
entertained  by  a  part  of  the  people,  that  a  new  and 
supreme  sovereignty  had  been  created,  a  living,  inde 
pendent  organism,  endued  with  the  powers  as  well  as 
charged  with  the  functions  of  sovereignty;  that  the 
Constitution  which  established  it  contemplated  unre 
stricted  action ;  that  the  enumeration  of  powers  was  not 
restrictive  but  suggestive,  and  that,  consequently,  the 
Constitution  actually  contained  every  power  necessary 
to  a  sovereign  ;  that  where  there  is  a  power,  there  is 
also  the  duty  of  exercising  it,  and,  hence,  that  the  true 
construction  should  be  one  which  brought  these  latent 
powers  to  the  light  of  day,  and  thus  expanded  and 
strengthened  the  central  government.  It  is  evident 


178  THE  FORMATION  OF  PARTIES. 

that  the  underlying  principle  of  this  doctrine  was, 
that  central  government  in  the  United  States  was  not 
federal  but  single,  and  that  its  powers  were  original 
and  not  delegated.  The  adherents  of  this  principle 
had  one  very  great  advantage  over  their  opponents  : 
when  the  new  government  began  its  operation,  they 
were  already  organized  and  they  were  in  power ; 
nevertheless,  the  doctrinaires  could  not  be  said  to 
constitute  a  party,  for  the  wprd  "  party,"  in  its  politi 
cal  sense,  implies  an  opponent,  and  this  it  could  not 
be  said  to  have.  It  must,  therefore,  still  be  denom 
inated  a  school. 

On  the  other  hand,  as  circumstances  developed  op 
position,  the  opponents  of  the  administration,  mindful 
of  ancient  principles  and  chafing  at  the  intrusion  of 
new  ones,  became  sensible  of  the  fact  that  the  preser 
vation  of  their  local  self-government  rested  upon  denial 
of  illimitable  power  in  the  central  government,  and 
that  the  surest  way  to  resist  encroachment  was  to 
stand  upon  the  very  terms  of  the  instrument,  and  to 
insist  upon  a  construction  which  would  restrict  the 
government  to  the  powers  enumerated,  and  therefore 
they  adopted  the  rule  of  strict-construction.  That 
they  constituted  a  school  only,  as  yet,  and  not  a  party, 
is  shown  by  the  discussions  of  the  day,  which  do  not 
evince  the  identity  of  principle  and  the  concert  of 
action  now  exacted  by  every  party  of  its  constituents, 
but  show  that  each  man  still  thought  and  voted  for 
himself  with  little  reference  to  others.  Reflection  and 
discussion  at  last  established  the  opposition  upon  a 
doctrine  which  did  not  rely  upon  argument  only,  but 
which  drew  to  its  support  historical  facts  and  those, 
too,  which  were  fresh  in  the  recollection.  This  doc- 


STRICT  CONSTRUCTION.  179 

trine  maintained  that  the  local  governments  were  cre 
ators  of  the  central  government,  and  that  logically  the 
creator  was  superior  to  the  creature ;  that  these  local 
authorities  were  representatives  and  conservators  of 
the  natural  and  political  rights  of  the  citizens,  whereas 
the  central  authority,  which  was  altogether  an  arti 
ficial  being,  represented  merely  specified  powers  dele 
gated  by  its  creators  and  to  be  exerted  only  for 
specific  purposes,  foremost  among  which  was  the  pres 
ervation  of  local  self-government ;  that  the  central 
government  could  not  be  enlarged  except  at  the  ex 
pense  of  the  states  ;  that,  instead  of  extension  of 
power  being  conceded  to  the  general  government,  re 
striction  of  power  to  the  terms  of  the  instrument 
would  alone  conform  to  the  intention  of  the  framers, 
which  intention  was,  that  these  powers  were  not  sur 
rendered,  but  delegated,  and,  hence,  that  the  construc 
tion  of  the  Constitution  should  be  a  strict  one.  It  is 
evident  that  the  underlying  principle  of  these  doc 
trines  was,  that  government  was  made  for  the  citizen, 
and  could  not  be  exercised  to  the  furtherance  of  any 
thing  that  affected  unfavorably  his  right  to  local  self- 
government.  This  principle,  henceforth,  assumed  the 
character  of  an  active  and  aggressive  political  force,  to 
assert  which  its  adherents  organized  and  eventually 
became  a  party. 

It  can  hardly  be  said  that  the  mere  coherence  of 
men  entertaining  similar  principles  and  ideas  consti 
tuted  a  party  ;  but  circumstances  were  so  productive 
of  opportunity  in  the  early  days  of  the  republic,  that 
definition  of  principles  and  organization  of  party  pro 
ceeded  with  much  greater  rapidity  than  they  possibly 
could  do  in  more  settled  times.  The  portfolios  of  the 


180  THE  FORMATION  OF  PARTIES. 

cabinet  teemed  with  measures,  and  the  spirit  of  dis 
pute  possessed  Congress.  In  those  early  days,  the 
tyranny  of  routine  and  the  omnipotence  of  committees 
were  still  unknown,  and  every  measure,  as  it  presented 
itself,  met  full  and  open  debate  : J  time  was  afforded 
and  taken  to  discuss  the  plans  of  government  more 
as  subjects  of  principle  than  of  policy.  Apart  from 
Hamilton,  it  cannot  be  said  that  there  was  any  one  to 
urge  a  distinct  or  novel  policy  upon  Congress ;  but 
then,  as  far  as  the  internal  organization  of  govern 
ment  was  concerned,  Hamilton  was  everything.  Mem 
bers  of  Congress  in  time  began  to  conceive  of  meas- 
sures  in  the  light  of  policy  as  well  as  of  principle,  and 
What  would  the  administration  have  us  to  do  ?  came 
to  be  a  question  which  presented  itself  along  with  the 
bill.  The  impulse  of  resisting  an  administration  meas 
ure  merely  because  it  was  such,  it  is  true,  had  not 
yet  acquired  a  footing ;  but,  such  was  the  strong  per 
sonality  of  Hamilton,  that  it  impressed  itself  on  friend 
and  foe,  and  his  plans  at  last  met  resistance  in  the 
feeling  that  whatever  originated  from  him  must  run 
the  gauntlet ;  it  may  be  assumed,  too,  that  the  Sec 
retary  of  the  Treasury  had  often  to  confront  opposi 
tion  which  forebore  to  encounter  the  President. 

The  qualities  which  inspired  the  followers  of  Ham 
ilton  with  so  great  enthusiasm,  and  his  adversaries 
with  equally  great  aversion,  must  have  been  singular, 
indeed.  They  found  their  match,  nevertheless,  in  the 

1  It  was  not  until  1799  that  the  House  of  Representatives  consti 
tuted  permanent  committees  ;  an  example  which  the  Senate  did  not 
follow  until  the  second  session  of  the  Fourteenth  Congress,  in  1816. 

The  Senate  sat  with  closed  doors  until  February  20, 1794.  Maclay's 
Journal  affords  evidence  sufficient  for  the  assertion  that  senatorial 
discussion  was  very  thorough,  practical,  and  outspoken. 


OBJECTS  OF  HAMILTON'S  POLICY.        181 

peculiar  individuality  of  his  rival,  and  it  must  be 
accepted  as  a  fact  that  the  personal  characteristics  of 
the  leaders  early  became  positive  elements  in  the  for 
mation  of  the  parties  they  led,  and  that  they  stamped 
impressions  which  are  not  wholly  obliterated  at  this 
day.  If,  for  a  time,  Congress  did  not  set  forth  two 
great  parties,  it  was  not  long  before  it  displayed  two 
great  clans,  and  it  is  for  this  reason  that,  instead  of 
applying  to  them  names  indicative  of  party  organiza 
tion,  during  this  brief  period  they  came  to  be  aptly 
styled  Hamiltonians  and  Jeffersonians. 

In  order  to  comprehend  the  feelings,  not  the  prin 
ciples,  which  played  so  important  a  part  in  determin 
ing  the  ultimate  character  of  the  two  great  parties, 
we  must  look  at  the  measures  of  the  Treasury  in  the 
light  in  which  they  appeared  to  the  opposition.  Such 
became  the  virulence  of  personal  feeling,  and  so  dis 
colored  by  it  did  party  sentiment  become,  that  the 
effort  is  not  an  altogether  pleasant  one. 

Let  us  consider  what  Hamilton  declared  the  object 
of  his  financial  policy  to  be.  It  is  in  these  words  : 
"  To  justify  or  preserve  the  confidence  of  the  most 
enlightened  friends  of  good  government ;  to  promote 
the  respectability  of  the  American  name  ;  to  answer 
the  calls  of  justice  ;  to  restore  landed  property  to  its 
due  value ;  to  furnish  new  resources  both  to  agricul 
ture  and  commerce  ;  to  cement  more  closely  the  union 
of  the  states  ;  to  add  to  their  security  against  foreign 
attack  ;  to  establish  public  order  on  the  basis  of  an 
upright  and  liberal  policy,  —  these  are  the  great  and 
invaluable  ends  to  be  secured  by  a  proper  and  ade 
quate  provision,  at  the  present  period,  for  the  support 
of  the  public  credit."  1  No  one  who  appreciates  the 

1  Report  on  the  Public  Credit. 


182  THE  FORMATION   OF  PARTIES. 

ambition,  the  earnestness,  and  the  purity  of  Hamil 
ton's  political  character,  can  class  this  statement  of 
principles  with  the  glittering  generalities  common  to 
politicians.  The  plans  that  flowed  from  his  exhaust- 
less  brain,  whether  to  be  accepted  within  or  without 
the  Constitution,  testify  to  his  persistence  in  these 
purposes,  and  the  untiring  industry  he  bestowed  upon 
his  measures  proves  that  to  him  they  were  real  ob 
jects  of  endeavor,  and  worthy  of  the  utmost  efforts  of 
his  life  to  attain.  But,  to  Jefferson  and  his  followers, 
the  funding  bill,  the  assumption  of  the  state  debts, 
the  incorporation  of  the  Bank,  the  excise  law,  the 
tariff,  all  the  measures  which  followed  in  their  train 
and  were  initiated  by  the  Secretary  of  the  Treasury, 
—  all  these,  taken  together,  assumed  the  character  of 
a  scheme  which,  changing  with  circumstances,  could 
have  but  one  result :  the  subversion  of  local  self-gov 
ernment  and  the  establishment  of  a  general,  central 
ized,  consolidated  government  in  its  place.  To  effect 
this,  the  fiscal  measures  proposed  by  Hamilton  had 
for  their  object  the  erection  of  the  capitalists  into  a 
controlling  class,  whose  interest  it  would  be  to  support 
the  present  administration,  and  to  keep  on  extending 
the  power  of  the  central  government.  Thus,  by  the 
operation  of  the  funding  bill  and  by  the  assumption  of 
the  state  debts,  the  public  creditors  would  be  organ 
ized  into  a  body  which  would  share  in  the  control  of 
the  country,  through  the  pressure  it  brought  to  bear 
upon  the  government,  its  debtor  ;  by  the  excise  bill, 
an  army  of  officials,  disseminated  among  the  people 
and  clothed  with  inquisitorial  power,  would  be  at  the 
beck  of  the  Secretary  of  the  Treasury  ;  by  the  incor 
poration  of  the  Bank,  the  actual  control  of  the  money 


JEFFERSONIAN   VIEW  OF  HAMILTON.      183 

circulation  would  fall  into  the  hands  of  the  govern 
ment,  and  a  party  of  dependents,  who  sought  office  or 
expected  compensation  for  services  rendered,  would 
fill  the  lobbies,  or  even  organize  upon  the  floor  of  Con 
gress  a  party  which,  holding  the  balance  of  power, 
could  determine  by  their  votes  the  fate  of  whatever 
legislation  the  administration  was  pleased  to  favor  or 
condemn  ;  by  a  protective  tariff,  a  new  class,  the  class 
of  manufacturers,  would  be  created,  and,  though  this 
would  be  but  a  subdivision  of  the  moneyed  class,  nev 
ertheless,  by  its  concentration  at  the  commercial  cen 
tres,  it  could  make  itself  speedily  felt  in  support  of 
the  government  which  had  called  it  into  being,  and 
by  whose  breath  it  could  be  annihilated.  This  wholly 
artificial  class  would  play  a  double  part  in  enriching 
itself  at  the  cost  of  the  community,  particularly  of  the 
agricultural  portion  ;  for,  at  the  same  time  that  it 
brought  strength  to  the  central  government,  the  state 
governments,  most  of  which  were  founded  upon  the 
agricultural  interests,  would  be  directly  weakened. 
"  His  system,"  said  Jefferson,  "  flowed  from  principles 
adverse  to  liberty,  and  was  calculated  to  undermine 
and  demolish  the  republic.  .  .  .  The  object  of  all 
these  plans,  taken  together,  is  to  draw  all  the  powers 
of  the  government  into  the  hands  of  the  general 
legislature ;  to  establish  means  for  corrupting  a  suffi 
cient  corps  in  that  legislature  to  divide  the  honest 
votes,  and  preponderate  their  own  way  the  scale  which 
suited,  and  to  have  the  corps  under  the  command  of 
the  Secretary  of  the  Treasury  for  the  purpose  of  sub 
verting,  step  by  step,  the  principles  of  the  Constituv 
tion,  which  he  has  so  often  declared  to  be  a  thing  of 
nothing,  which  must  be  changed."  1 

1  Jefferson's  Works,  iii,  461,  462. 


184  THE  FORMATION   OF  PARTIES. 

Such  were  the  views  of  Hamilton's  financial  policy 
which  were  entertained  by  the  Jeffersonians.  They 
amount  to  the  charge  that  the  Secretary  of  the  Treas 
ury  sought  to  establish  a  class  government ;  that  this 
government  would  be  founded  upon  the  assumption 
that  men  were  weak  and  base,  and  would  recognize 
corruption  as  a  political,  governmental  force  ;  and  that 
such  a  government  could  not  exist  unless  the  present 
one  should  be  first  subverted. 

The  disciples  of  Alexander  Hamilton  have  univer 
sally  assumed  that  the  measures  he  proposed  when  a 
member  of  Washington's  cabinet,  and  the  influence  he 
exerted  during  Adams'  administration,  had  for  their 
object  to  impress  upon  the  young  republic  a  certain 
character  which  even  yet  has  not  been  attained :  that 
he  did  not  believe  that  men  had  either  the  capacity  or 
the  character  for  self-government,  and  that,  compelled 
to  forego  the  establishment  of  a  limited  monarchy 
after  the  British  model,  he  still  nourished  in  his  heart 
the  hope  of  an  aristocratic  republic,  and  bent  all  his 
energies  and  measures  to  the  ultimate  attainment  of 
this  end. 

That  Hamilton  had  no  faith  in  popular  self-govern 
ment  we  know,  and  we  know,  too,  his  aversion  to  de 
mocracy  and  his  admiration  of  the  British  monarchical 
constitution  ;  but  he  was  a  man  of  great  sense,  and  he 
realized  that  the  popular  abhorrence  of  monarchy  and 
aristocracy  which  prevailed  among  the  American  peo 
ple  rendered  any  scheme  of  the  kind  out  of  the  ques 
tion.  That,  in  the  absence  of  a  form  of  government 
embracing  king,  lords,  and  commons,  he  would  be  con 
tent  with  one  divided  into  lords  and  commons,  that  is 


HAMILTON  FOUNDS  A   PLUTOCRACY.      185 

to  say,  an  aristocratic  republic,  may  be  believed  ;  but, 
as  far  as  the  measures  he  presented  and  the  influence 
he  exerted  went,  there  is  nothing  to  show  that  he  ever 
contemplated  this  republic  being  an  aristocratic  one. 
If  he  did  so,  why  did  he  not  make  use  of  the  materials 
at  hand  to  constitute  such  a  government?  From 
Mason  and  Dixon's  line  southward,  no  social  constitu 
tion  was  ever  more  aristocratic  than  the  one  which  ex 
isted  when  he  became  a  member  of  Washington's  cabi 
net,  and  which  remained  so  until  it  was  subverted  by 
the  civil  war  of  1861.  In  this  region,  society  was 
divided  into  the  owners  and  the  owned,  and  in  his 
own  state,  upon  the  Hudson,  the  patroons  had  always 
constituted  an  aristocracy.  This  aristocracy,  north 
and  south,  was  built  upon  the  only  foundation  which 
the  history  of  modern  civilization  indicates  as  the  real 
basis  of  aristocracy,  land.  With  these  abundant  ma 
terials  at  hand,  and  with  the  commonalty  impoverished 
and  at  the  mercy  of  the  upper  classes  whose  possessions 
had  not  been  seriously  diminished  by  the  war,  why  did 
he  not  show  his  hand,  if  his  dearest  wish  was  to  found 
an  aristocratic  republic  ?  The  iron  was  hot,  and  then 
was  the  time  to  strike  it ;  but  he  did  not  give  the 
blow,  nor  do  any  of  his  measures  indicate  that  such  a 
design  was  in  his  mind.  On  the  contrary,  everything 
that  he  did  was  so  opposed  to  the  landed  interest  that 
he  was  hardly  warm  in  his  seat  before  this  class  was 
in  array  against  him.  This  interest  predominated  in 
the  anti-Federalist  or  new  party  to  such  an  extent 
that,  without  it,  the  opposition  would  have  been  of 
little  avail.  The  reason  is  clear,  —  the  Hamiltonian 
measures,  one  after  another,  not  only  struck  at  the 
influence  of  the  landed  interest,  but  were  directed 


186  THE  FORMATION   OF  PARTIES. 

towards  the  creation  of  a  class  which  was  to  take  the 
place  of  such  interest,  and  this  was  the  moneyed  class. 
Kealty,  as  a  lawyer  would  say,  was  to  be  made  subor 
dinate  to  personalty :  the  tariff  was  to  build  up  man 
ufactures,  and  the  bank  was  to  foster  a  body  that 
dealt  in  money.  Every  measure  was  in  the  interest 
of  the  commercial  and  money-getting  classes,  but 
nothing  was  done  for  those  who  tilled  the  soil  and 
paid  the  taxes,  and  who,  at  the  South  and  along  the 
Hudson,  had  for  generations  maintained  the  state  and 
habits  of  a  landed  aristocracy.  Surely,  a  policy  so  un 
favorable  to  an  aristocracy  ready  at  hand  cannot  be 
taken  as  evidence  of  a  desire  to  establish  an  aristo 
cratic  republic  :  rather  must  it  be  deemed  to  have  the 
design  of  establishing  a  plutocratic  republic.  If  the 
Hamiltonian  policy  had  any  definite  and  unmistakable 
object,  it  was  to  subvert  the  existing  aristocracy  and 
to  put  in  its  place  a  plutocracy.  This  it  accomplished ; 
the  landed  interests  became  subordinate  to  the  com 
mercial  interests  ;  the  towns  and  cities  waxed  great  at 
the  expense  of  the  plantations  ;  the  notion  of  paternal 
ism  in  government  was  planted  in  the  minds  of  the 
people ;  a  crowd  of  dependents  was  fostered  and  or 
ganized  into  semi-official  agents  of  administration,  and 
before  Hamilton  went  out  of  office,  the  character  of 
American  society  had  changed. 

Posterity  has  this  charge  to  make  against  Hamilton, 
that  when  their  fathers  had  by  their  swords  gained  a 
position  from  which  to  start  the  experiment  of  found 
ing  government  upon  something  higher  and  nobler 
than  the  fears  and  sordidness  of  human  nature,  and 
had  the  disposition  to  do  so,  he  threw  cold  water  upon 
this  aspiration,  sneered  at  the  notion  as  visionary,  and 


THE  LOST   OPPORTUNITY.  187 

frustrated  the  design  by  starting  the  young  republic 
upon  principles  of  administration  which  regarded  men, 
first  and  last,  as  base  and  incapable.  To  him  we  owe, 
more  than  to  any  other  man,  unless  it  be  Madison,  the 
Constitution  itself ;  but  to  him  we  owe  also  the  lost 
opportunity  of  making  the  experiment  which  might 
have  proved  that  men  are  not  base  and  incapable,  and 
that  government  may  have  a  better  foundation  than 
the  fears  and  sordidness  of  human  nature.  It  may  be 
that  the  notion  was  a  visionary  one,  but  thousands  of 
upright  men,  whose  self-sacrifice  had  earned  for  them 
the  right  to  make  the  trial,  protested  ardently  against 
the  young  republic  being  invested  with  a  character 
with  which  they  had  not  endued  it,  and  earnestly  de 
manded  an  administration  upon  far  different  princi 
ples.  This  opportunity,  the  only  one  the  anglican 
race  has  had  since  the  days  of  the  English  Common 
wealth,  was  denied  to  them  and  to  the  world,  and  the 
worst  form  of  social  constitution  known  to  men,  plu 
tocracy,  was  forced  upon  the  Americans.  From  Ham 
ilton's  time  to  ours,  although  more  than  once  strenu 
ously  combated,  the  march  of  plutocracy  has  been 
onward,  until  to-day  nothing  opposes  its  resistless  sway 
except  the  mutterings  of  revolution  which  are  ominous 
of  a  violent  reorganization  of  society. 

The  regret  at  letting  this  opportunity  slip  is  ag 
gravated  by  the  knowledge  we  of  our  day  have,  that 
our  world  was  on  the  eve  of  the  most  remarkable  ex 
pansion  of  material  wealth  known  to  men.  Within 
a  few  years  the  force  of  steam  was  utilized  and  the 
cotton  gin  invented ;  and  within  three  generations  all 
the  great  discoveries  and  inventions  have  occurred  by 
which  the  energies  of  men  in  the  XlXth  century  have 


188  THE  FORMATION   OF  PARTIES. 

been  concentrated  upon  material  development.  To 
him  who  regards  the  Hamilton! an  policy  as  a  fortui 
tous  as  well  as  a  wise  policy,  and  finds  in  it  the  special 
providence  which  was  to  devote  this  youthful  continent 
to  "  the  spirit  of  the  nineteenth  century,"  nothing  can 
be  said.  But  he  who  regards  man  as  a  creature  com 
pounded  of  good  as  well  as  bad,  who  looks  upon  gov 
ernment  as  a  science  still  susceptible  to  development, 
and  who  hopes  that  every  rising  sun  will  bring  the 
world  nearer  to  a  time  when  evil  will  not  be  an 
acknowledged  constituent  of  administration,  must  bit 
terly  regret  that  when  the  opportunity  existed,  the 
man  to  take  advantage  of  it  was  not  in  power.  It  is 
sad  to  think  that  the  experiment  was  handed  over  to 
the  mobs  of  the  most  excitable  people,  and  of  the  one 
least  subject  to  self-control  since  the  days  of  the  Athe 
nians  :  yet,  when  we  see  what  the  French  Revolution 
has  done  for  the  human  race,  what  infinite  good  might 
have  been  expected  from  a  fair  trial  by  an  anglican 
representative-democracy  !  Even  had  the  experiment 
proved  disappointing,  our  condition  could  have  been 
no  worse  than  it  had  been  ;  the  resources  of  a  new 
country,  multiplied  by  invention  and  discovery,  might 
have  mitigated  the  evils  of  failure,  and  men  the  world 
over  would  have  been  in  possession  of  that  rarest  and 
richest  political  wealth,  knowledge  of  the  practical 
working  of  a  new  idea. 


CHAPTER  X. 

CONSTITUTIONAL   LEGISLATION. 

The  Ordinance  of  1787  —  The  Kentucky  and  Virginia  Resolutions  — 
The  Missouri  Compromise. 

MARYLAND  instructed  her  delegates,  in  1778,  not 
to  agree  to  the  Confederation,  unless  the  northwestern 
territory  "  should  be  considered  as  a  common  prop 
erty,  subject  to  be  parceled  out  by  Congress  into  free, 
convenient,  and  independent  governments,  in  such 
manner  and  at  such  times  as  the  wisdom  of  that  as 
sembly  shall  hereafter  direct."  Inasmuch  as  this 
territory  was  the  subject  of  divers  claims,  especially 
of  that  of  Virginia,  which  embraced  nearly  all  the 
land,  and  the  claimants  were  not  disposed  to  surren 
der  these  claims,  the  Articles  of  Confederation  re 
mained  unadopted  until  the  first  of  March,  1781 ; 
upon  this  day,  Maryland  ratified  the  Articles.  She 
did  so  because  New  York  had  resigned  her  dubious 
claim  in  favor  of  "  such  of  the  United  States  as  shall 
become  members  of  the  federal  alliance  ; "  Connecti 
cut  had  resigned  her  claim ;  Virginia  had  offered  con 
ditionally  to  cede  the  one  she  had  to  the  territory 
northwest  of  the  Ohio  River  ;  and  because  Congress 
had  showed  itself  ready  to  complete  the  programme 
by  the  declaration  that  the  said  territories  should  be 
"  formed  into  distinct  republican  states,  which  should 
become  members  of  the  Federal  Union,  and  have  the 


190  CONSTITUTIONAL   LEGISLATION. 

same  rights   of   sovereignty,  freedom,  and   indepen 
dence  as  the  other  states."  l 

Pressure  had  to  be  brought  to  bear  upon  Virginia, 
whose  conditional  offer  to  cede  had  not  been  accepted 
by  Congress,  but  at  last  she  yielded,2  and  the  vast  re 
gions  known  as  "  the  Northwest  Territory  "  fell  under 
the  disposition  of  the  United  States.3  Jefferson, 
shortly  afterward,  as  chairman  of  a  special  committee, 
reported  a  plan  for  the  temporary  government  of  all 
the  western  territory  including  the  Northwest,  and 
this  was  one  of  the  last  official  acts  performed  by  him 
before  setting  sail  as  minister  to  France.  This  plan, 
which  contemplated  the  future  erection  of  sixteen 
states,  included  the  following  provisions  :  that  "  after 
the  year  1800  there  shall  be  neither  slavery  nor  in 
voluntary  servitude  in  any  of  the  said  states  other 
than  in  the  punishment  of  crimes,  whereof  the  party 
shall  have  been  duly  convicted."  This  prospective 
prohibition  was  to  cover  all  the  states,  as  well  those 
south  of  the  Ohio  River  as  those  north  of  it.  The 
six  northern  states  voted  for  this  prohibition  :  North 
Carolina  was  divided  ;  Maryland,  Virginia,  and  South 
Carolina  voted  against  it,  and  New  Jersey,  Delaware, 
and  Georgia  were  unrepresented.  One  state  more  in 
its  favor,  and  the  prohibition  of  slavery  on  the  eastern 
slope  of  the  Valley  of  the  Mississippi  that  was  in 
possession  of  the  United  States  would  have  been 
effected.  As  it  stood,  the  proviso  was  lost  for  lack 

1  October  10,  1780 ;  Journals  of  Congress,  III,  535,  282. 

2  October  20,  1783. 

8  Hening-'s  Statutes,  564-7;  Congress  accepted,  March  1,  1784. 
Massachusetts  ceded,  April  19,  1785,  and  Congress  accepted  Connect 
icut's  cession,  May  26,  1786,  but  Connecticut  held  on  to  the  Western 
Reserve  until  1800.  South  Carolina  ceded  in  1787. 


ORDINANCE   OF  1787.  191 

of  the  seven  votes  requisite  to  a  majority.  The  rest 
of  the  report  was  adopted. 

In  1785  Rufus  King,  of  Massachusetts,  again  pre 
sented  Jefferson's  prohibition,  with  the  omission  of 
the  words  "  after  the  year  1800,"  and  with  a  substi 
tution  of  the  words  "  personally  guilty  "  for  "  duly 
convicted."  This  made  the  prohibition  of  slavery 
immediate  instead  of  prospective.  The  resolution  as 
amended  was  sent  to  a  committee,  and  thence  was 
favorably  reported  by  a  vote  of  eight  states  to  three, 
but  it  was  not  acted  upon. 

Towards  the  close  of  the  following  year,  the  gov 
ernment  of  the  territory  was  again  taken  up  by  Con 
gress,  but  the  scope  of  the  committee  was  limited  to 
the  northwestern  portion.  It  was  this  committee 
which,  with  Nathan  Dane  as  Chairman,  framed  the 
famous  "  Ordinance  of  1787."  l  Jefferson's  prohibi 
tion,  made  immediate  instead  of  prospective,  was 
"  agreed  to  without  opposition,"  says  Dane,  who  ex 
pressed  his  surprise  in  a  letter  to  King.  There 
were  three  reasons  for  this :  one  was  that  the  pro 
hibition  would  affect  one  half  only  of  the  territory 
embraced  in  Jefferson's  proviso,  and  this  half  the 
northern  one,  which  lay  in  latitudes  already  demon 
strated  by  experience  to  be  uncongenial  to  the  main 
tenance  of  slavery.  The  South  really  gave  up  no 
thing.  Another  reason  was,  the  accompaniment  of  a 
fugitive  slave  clause  (the  first  one  in  our  history)  to 
the  prohibition.  The  last  reason  was  one  which  had 
a  cogent  effect  upon  a  Congress  which  legislated  con 
stantly  in  sight  of  an  empty  treasury ;  it  was  that  the 
Ohio  Land  Company  stood  ready  to  take  five  million 
1  Adopted,  July  13,  1787. 


192          CONSTITUTIONAL  LEGISLATION. 

acres  of  land  in  Ohio  at  a  valuation,  if  it  should  be 
organized  into  a  free  territory.  The  bargain  was 
struck,  and  thus  was  the  Northwest  reserved  for  free 
states  only.1  The  organization  of  the  territory  south 
of  the  Ohio  River  was  made  under  an  agreement  with 
the  ceding  states  that  slavery  should  not  be  pro 
hibited  within  its  limits. 

The  effect  of  the  provisions  of  this  Ordinance  in 
respect  to  the  prohibition  of  slavery,  to  freedom  of 
religion,  and  to  the  encouragement  of  education,  and 
the  guarantee  of  the  political  rights  of  the  individual, 
and  the  future  membership  of  the  projected  states  in 
the  Union,  was  amazing,  and  makes  the  most  impres 
sive  chapter  in  the  political  history  of  the  United 
States.  Two  distinct  forms  of  civilization  and  of 
society  grew  up  alongside  of  each  other,  separated 
only  by  a  thread,  the  Ohio  River,  and  they  were 
object-lessons  ever  present  to  the  scrutiny  of  man 
kind.  They  presented  the  striking  contrast  between 
society  founded  upon  free  labor  and  society  founded 
upon  slave  labor.  Two  social  forms  were  wide  apart, 
and  were  hopelessly  incompatible  with  each  other. 

The  Alien  and  Sedition  Laws  which  were  passed  by 
Congress  in  1798,  during  the  administration  of  John 
Adams,  afforded  the  text  upon  which  the  Kentucky 
and  Virginia  resolutions  were  written.  These  meas 
ures  were  regarded  throughout  the  country  as  sus 
taining  the  constant  assertion  of  Jefferson  that,  unless 
the  action  of  Congress  was  restricted  to  the  powers 

1  For  an  excellent  re'sume'  of  the  subject,  see  Alexander  Johnson's 
article,  entitled  "  Ordinance  of  1787,"  in  Lalor's  Cyclopaedia  of  Po 
litical  Science,  etc. ;  and  for  bibliography,  see  references  appended  to 
this  article. 


KENTUCKY  AND  VIRGINIA  RESOL  UTIONS.     193 

enumerated  in  the  Constitution,  no  protection  to  per 
sonal  and  civil  rights  would  remain,  except  that  which 
lay  in  the  reserved  powers  of  the  several  states.  Seiz 
ing  the  opportunity  presented  by  the  exasperating 
execution  of  these  laws,  Jefferson  and  Madison  under 
took  to  define,  through  state  legislative  action,  the 
nature  of  the  federal  government  and  the  relations 
borne  to  it  by  the  states,  and  to  point  out  the  exercise 
of  a  loose  construction  of  the  Constitution  as  a  fit  and 
necessary  subject  for  correction,  inasmuch  as  it  would 
inevitably  tend  to  change  the  existing  constitutional 
government  to  something  which  would  be  "  at  best  a 
mixed  monarchy." 

The  attempt  to  arouse  the  fears  of  the  states  and  to 
call  forth  a  general  legislative  protest,  if  not  interven 
tion,  against  the  encroachments  of  the  federal  govern 
ment,  proved  futile,  but  the  resolutions  did  not  fail 
to  excite  popular  apprehension,  and  to  augment  the 
ranks  of  the  strict-constructionists. 

The  position  taken  in  the  resolutions  was  :  1.  That 
the  general  government  had  its  origin  in  a  compact  be 
tween  the  several  states,  under  the  style  and  title  of 
a  Constitution  for  the  United  States  ;  and  that  to  this 
compact  each  state  acceded  as  a  state,  and  is  an  inte 
gral  party.  2.  That  these  several  states  had  consti 
tuted  this  general  government  for  special  purposes 
only.  3.  That  they  had  delegated  to  that  govern 
ment  certain  definite  powers,  reserving,  each  state  to 
itself,  the  residuary  mass  to  their  own  self-govern 
ment.  Therefore,  4,  whenever  the  general  govern 
ment  assumes  undelegated  powers,  its  acts  are  un- 
authoritative,  void,  and  of  no  force.  And,  5,  that 
the  general  government,  created  by  this  compact,  was 


194          CONSTITUTIONAL  LEGISLATION. 

not  made  the  exclusive  or  final  judge  of  the  extent 
of  the  powers  delegated  to  itself,  since  that  would 
have  made  its  discretion,  and  not  the  Constitution, 
the  measure  of  its  powers ;  but  that,  as  in  all  other 
cases  of  compact  among  parties  having  no  judge,  each 
party  has  an  equal  right  to  judge  for  itself,  as  well  of 
infractions  as  of  the  mode  and  measure  of  redress. 

Such  were  the  views  of  the  nature  of  the  federal 
government  and  the  rights  of  the  individual  states  set 
forth  in  the  first  of  the  Kentucky  resolutions.  The 
Virginia  resolutions  took  the  same  view  of  the  origin 
of  the  general  government,  viz. :  that  it  was  a  result  of 
a  compact  to  which  the  states  alone 1  were  parties,  and 
they  united  with  the  Kentucky  resolutions  in  depreca 
tion  of  broad  or  loose  construction  of  the  Constitution, 
and  in  censure  of  the  Alien  and  Sedition  Laws.  The 
transmission  of  copies  of  these  resolutions  directly  to 
the  governors  and  legislatures  of  the  other  states,  as 
well  as  to  the  Virginia  senators  and  representatives  in 
Congress,  was  enjoined ;  whereas  the  Kentucky  reso 
lutions  directed  their  transmission  merely  to  the  Ken 
tucky  senators  and  representatives  for  the  purpose  of 
securing  a  repeal  of  the  obnoxious  Alien  and  Sedition 
Laws. 

The  Kentucky  resolutions  had  expresssd  the  hope 
that  "  the  co-states,  recurring  to  their  natural  rights 
not  made  federal,  will  concur  in  declaring  these  [Alien 
and  Sedition  Laws]  void  and  of  no  force,  and  will  each 
unite  with  this  commonwealth  in  requesting  their  re 
peal  at  the  next  session  of  Congress."  The  Virginia 

1  The  word  "  alone  "  was  stricken  out,  as  well  as  the  words  "  null, 
void,  and  of  no  force  or  effect."  This  was  done  in  order  to  obviate 
the  objection  to  the  resolutions,  that  they  contained  declarations  ' '  not 
of  opinion  but  of  fact." 


THE  RESOLUTION  OF  1799.  195 

resolutions,  on  their  part,  declared  "  that  in  case  of  a 
deliberate,  palpable,  and  dangerous  exercise  of  their 
powers,  not  granted  by  the  said  compact,  the  states, 
which  are  parties  thereto,  have  the  right  and  are  in 
duty  bound  to  interpose  for  arresting  the  progress  of 
the  evil,  and  for  maintaining,  within  their  respective 
limits,  the  authorities,  rights,  and  liberties  appertain 
ing  to  them." 

This  assertion  contains  the  doctrine,  that  the  states 
have  a  right  to  judge  for  themselves,  whether  the 
exercise  of  powers  not  granted  by  the  compact  is  so 
deliberate,  palpable,  and  dangerous  as  to  warrant  in 
terposition  on  their  part,  or  no.  A  resolution,  under 
stood  to  be  by  a  hand  other  than  the  one  which  had 
written  the  text  of  1798,  was  added  to  the  Kentucky 
resolution,  in  the  following  year  (1799),  and  this  as 
serted  "  that  the  several  states  which  formed  that  in 
strument,  being  sovereign  and  independent,  have  the 
unquestionable  right  to  judge  of  the  infraction ;  that 
a  nullification,  by  those  sovereignties,  of  all  unauthor 
ized  acts,  done  under  color  of  that  instrument,  is  the 
rightful  remedy  ;  that,  although  this  commonwealth, 
as  a  party  to  the  federal  compact,  will  bow  to  the  laws 
of  the  Union,  yet  it  does  at  the  same  time  declare, 
that  it  will  not  now  or  ever  hereafter  cease  to  oppose, 
in  a  constitutional  manner,  every  attempt,  at  what 
quarter  soever  offered,  to  violate  that  compact,  and 
finally,  in  order  that  no  pretext  or  argument  may  be 
drawn  from  a  supposed  acquiescence  in  the  constitu 
tionality  of  those  laws,  and  be  thereby  used  as  prece 
dents  for  similar  further  violations  of  the  federal 
compact,  this  commonwealth  does  now  enter  against 
them  its  solemn  protest."  In  this  resolution  the  right 


196          CONSTITUTIONAL  LEGISLATION. 

to  judge  of  the  infraction  is  asserted  to  lie  in  "  the  sev 
eral  states,"  whereas  in  the  first  of  the  resolutions  of 
1798,  it  was  declared  that  u  each  party  [to  the  compact] 
has  an  equal  right  to  judge  for  itself."  The  wording 
in  the  first  resolution  is  not  so  clear,  but  in  later  times 
it  was  subjected  to  the  assertion,  notably  by  Webster 
in  1830,  that  Jefferson  had  committed  the  solecism  of 
making  his  several  states  enter  into  a  compact  with  a 
government  which  was  a  creature  of  this  very  compact ; 
but  this  was  a  palpable  misconstruction  of  terms. 

The  passage  of  these  resolutions  by  the  respective 
legislatures,  and  their  transmission  to  Congress  and  to 
the  other  states,  created  a  profound  impression  upon 
the  people  everywhere.  There  was  110  mistaking  their 
purpose ;  it  was,  to  formulate  a  creed  for  the  republi 
can-democratic  party, l  and  to  place  over  against  the 
doctrine  of  incidental,  auxiliary,  or  latent  powers  the 
enumerated  powers  ;  to  meet  the  assertion  of  complete 
sovereignty  in  the  general  government  with  the  rejoin 
der  that  exercise  of  powers  which  were  delegated  was 
to  be  accounted  for,  and  that  exercise  of  powers  not 
specifically  enumerated  was  usurpation.  The  federal 
and  decentralizing  element  in  the  Constitution  had 
turned  upon  the  national  and  centralizing  element, 
and  the  two  political  forces  were  now  arrayed  against 
each  other.  The  general  government  was  declared, 
once  for  all,  to  have  had  its  origin  in  a  compact  of 
equals,  above  whom  there  was  no  superior  to  whom 
appeals  could  be  made  upon  disagreement  among 

1  At  the  time  of  these  resolutions,  the  "  party  platform  "  had  not 
been  devised,  and  as  there  were  no  "  party  conventions  "  to  give  au 
thoritative  expression  to  party  doctrine,  recourse  was  had  in  several 
instances  to  the  resolutions  of  state  legislatures. 


THE   CONSTITUTION  A    COMPACT.        197 

themselves  ;  nor  upon  a  question  of  infraction  of  del 
egated  power  did  it  behoove  the  delegate  to  question 
the  authority  of  the  grant  of  powers  ;  nor  upon  a 
question  of  the  exercise  of  undelegated  powers  were 
there  any  judges  but  those  in  whom  the  sole  right 
to  those  powers  remained. 

Much  labor  has  been  expended  upon  the  task  of  ex 
plaining  away  the  word  "compact :  "  but,  in  view  of 
the  fact  that  the  word  was  made  use  of  in  the  resolu 
tions  only  eleven  years  after  the  Constitutional  Con 
vention  had  sat ;  that  the  author  of  the  Virginia  reso 
lutions  had  been  a  member  of  that  Convention,  and 
that  there  is  nothing  to  show  that  a  change  in  the 
meaning  of  so  technical  and  well-defined  a  word  as 
this  is  had  taken  place,  it  is  to  be  presumed  that  the 
word  "  compact  "  was  used  by  the  authors  of  the  reso 
lutions  in  1798  in  the  same  sense  in  which  it  had 
been  used  by  them  in  1787.  Now,  in  1787  and  1788, 
the  term  "  compact "  was  in  general  use  in  referring 
to  the  Constitution,  as  "  The  Federalist "  and  the  rat 
ifications  themselves  of  the  instrument  clearly  show  ; 
for  in  the  ratification  of  Massachusetts,  the  Constitu 
tion  was  said  to  be  "an  explicit  and  solemn  compact," 
and  New  Hampshire  uses  the  same  words.  In  every 
one  of  the  debates  of  the  state  conventions  called  to 
ratify  or  reject  the  Constitution,  the  word  was  used 
freely  in  application  to  this  instrument,  and  in  the 
same  sense  as  that  in  which  it  is  employed  in  the  res 
olutions,  and  no  one  was  called  to  account  for  doing 
so :  and  in  the  correspondence  and  publications  of 
the  friends  or  the  opponents  of  this  frame  of  govern 
ment  it  was  applied  in  the  same  way,  as  is  to  be  seen 
in  the  letters  and  other  writings  of  Washington,  Mad- 


198          CONSTITUTIONAL  LEGISLATION. 

ison,  Hamilton,  Morris,  Rufus  King,  Ellsworth,  and 
Randolph.  Edmund  Pendleton,  President  of  the  Vir 
ginia  ratifying  Convention,  went  so  far  as  to  assert : 
"  This  is  the  only  government  founded  in  real  com 
pact."  Daniel  Webster,  then,  was  surely  wrong  in 
saying  of  Calhoun  that  "  he  introduces  a  new  word  of 
his  own,  viz. :  Compact,  as  importing  the  principal 
idea,  and  designed  to  play  the  principal  part." 

Not  to  dwell  upon  an  interpretation  of  the  word 
"  compact,"  or  upon  the  objections  to  it  in  character 
izing  the  Constitution,  the  spirit  and  meaning  (so 
much  and  so  long  disputed)  of  the  resolutions  them 
selves  are  more  to  the  purpose.  For,  although  these 
tenets  failed  to  call  forth  the  sympathetic  response  of 
the  various  legislatures,  they  drew  to  themselves  the 
fealty  of  the  strict-constructionists,  who  were  then  on 
the  eve  of  sweeping  the  latitudinarians  from  the  po 
litical  field ;  and  such  stupendous  consequences  have 
flowed  from  these  resolutions  as  sources  of  doctrine, 
that  it  is  requisite  to  have  as  clear  a  notion  of  their 
spirit  and  meaning  as  can  be  gathered  from  a  brief 
summary  of  the  textual  expressions,  and  of  the  argu 
ments  for  and  against  them  made  by  their  advocates 
and  opponents  and  by  contending  expounders  of  the 
Constitution. 

In  respect,  then,  to  the  spirit  and  intentions  of  these 
resolutions,  the  question  arises,  What  purpose  had  their 
authors  in  view,  when  they  promulgated  them  and 
called  upon  the  other  states  to  make  them  their  own  ? 
Did  they  mean  that  the  states  should  go  to  the  length 
of  blocking  completely  the  action  of  the  federal  gov 
ernment  ?  Did  they  intend  to  imply  forcible  resist 
ance  of  a  state  to  objectionable  laws? 


FIVE  MODES   OF  REDRESS.  199 

Several  ways  by  which  the  mass  of  right  residuary 
in  the  states  could  act  in  case  of  infraction  suggest 
themselves  :  1.  By  mere  protest,  or  by  petition,  on 
the  part  of  the  particular  governments ;  in  which 
cases  correction  of  the  evil  would  be  left  to  the  action 
of  public  opinion.  2.  By  direct  request  that  Con 
gress  repeal  the  infracting  laws.  3.  By  separate  pro 
test  of  the  several  states.  4.  By  separate  request  of 
these  states  for  repeal,  and,  5,  by  action  of  a  conven 
tion,  whose  corrective  amendments  to  the  Constitu 
tion  would  be  ratified  by  the  requisite  number  of 
states.  The  first  and  third  of  these  methods  would 
be  indirect  in  their  action,  and  would  refer  the  correc 
tion  of  the  evil  to  the  sober  judgment  of  the  people  ; 
they  would  rely,  too,  upon  the  favorable  operation  of 
time.  The  second  and  fourth  methods  would  be  di 
rect  and  would  leave  nothing  to  time  ;  but  no  one  of 
these  four  modes  of  redress  would  indicate  a  disposi 
tion  unfriendly  to  the  general  government,  for  they 
would  be  strictly  within  the  provision  of  the  Consti 
tution  relating  to  amendments,1  and  in  compliance 
with  the  spirit  of  the  article  2  recognizing  the  right  of 
the  people  peaceably  to  assemble  and  to  petition  the 
government  for  a  redress  of  grievances,  and  of  the 
article 3  reserving  to  the  states  powers  not  delegated. 
These  methods,  then,  would  be  constitutional  and 
therefore  unobjectionable,  and  would  accord  with  the 
professions  of  the  resolutions,  that  the  state  "  consid 
ers  union  for  specified  national  purposes  to  be  friendly 
to  the  peace,  happiness,  and  prosperity  of  all  the 

1  Article  V. 

2  Article  VIII.  ;  the  first  article  of  the  amendments. 

3  Article  X. 


200  CONSTITUTIONAL  LEGISLATION. 

states ;  "  that,  "  faithful  to  the  compact,  according  to 
the  plain  intent  and  meaning  in  which  it  was  under 
stood  and  acceded  to  by  the  several  parties,  it  is  sin 
cerely  anxious  for  its  preservation  ;  " l  that  it  has  "  a 
firm  resolution  to  maintain  and  defend  the  Constitu 
tion  of  the  United  States  against  every  aggression 
either  foreign  or  domestic,  and  that  it  will  support  the 
government  of  the  United  States  in  all  measures 
warranted  by  the  [Constitution]  ;  "  that  it  "  most  sol 
emnly  declares  a  warm  attachment  to  the  Union  of 
the  states,  to  maintain  which  it  pledges  its  powers, 
and  that  for  this  end,  it  is  its  duty  to  watch  over  and 
oppose  every  infraction  of  those  principles  which  con 
stitute  the  only  basis  of  that  Union."  2  The  Virginia 
resolutions  took  particular  pains  to  assert  "the  truest 
anxiety  for  establishing  and  perpetuating  the  union  of 
all,  and  the  most  scrupulous  fidelity  to  that  Consti 
tution,  which  is  the  pledge  of  mutual  friendship  and 
the  instrument  of  mutual  happiness,"  and  even  the  ar 
ticle  of  1799  appended  to  the  Kentucky  resolutions 
acknowledges  "  that  this  commonwealth,  as  a  party 
to  the  federal  compact,  will  bow  to  the  laws  of  the 
Union." 

Internal  evidence  certainly  displays  a  right  spirit 
within  the  resolutions  ;  for  they  breathe  a  warm  at 
tachment  to  the  Union,  the  most  scrupulous  fidelity  to 
the  Constitution,  and  a  determination  to  maintain  and 
defend  the  government.  No  fault,  then,  can  be  found 
with  the  spirit  of  the  resolutions,  and  none  could  ever 
have  been  found,  were  it  not  that,  in  the  eighth  arti 
cle  of  the  Kentucky  resolutions,  it  was  declared  "  that 

1  Kentucky  resolutions,  article  8. 

2  Virginia  resolutions  :  preamble. 


REDRESS  WITHIN   THE   CONSTITUTION.    201 

every  state  has  a  natural  right  in  cases  not  within  the 
compact  (casus  nonfoederis)  to  nullify  of  their  own 
authority  all  assumptions  of  power  by  others  within 
their  limits,"  and  that  a  "  nullification  by  those  sover 
eignties  [the  several  states]  of  all  unauthorized  acts, 
done  under  color  of  that  instrument  [the  Constitution 
of  the  United  States]  is  the  rightful  remedy."  The 
word  "  every  "  followed  by  the  word  "  their  "  threw  a 
shade  of  ambiguity  over  this  clause  sufficient  to  draw 
upon  it  the  reproach  of  maintaining  that  a  single 
state  had  the  right  to  nullify  the  common  laws  of  all. 
But  the  Virginia  resolutions,  on  their  part,  made  use 
of  the  plural  term  "  states,"  and  as  the  rule  of  the 
majority  is  inherent  in  the  federal  system,  the  conclu 
sion  is  irresistible  that  Virginia  intended  the  inter 
position  which  she  recommended  to  be  that  of  a  ma 
jority  of  the  states  :  and,  further,  inasmuch  as  the 
Constitution  provides  for  its  own  amendment  on  the 
application  of  two  thirds  of  the  states,  it  is  most  prob 
able  that  this  constitutional  method  of  "  arresting  the 
progress  of  the  evil  "  was  the  only  one  she  had  in 
view.  Such  being  the  case,  an  appeal  to  public  opin 
ion  with  the  design  of  uniting  three  fourths  of  the 
states  in  ratification  of  an  effective  amendment  to  the 
Constitution  was  all  that  was  intended  by  Virginia.1 
The  facts  that  the  Virginia  resolutions  do  not  contain 
the  words  "  nullify,"  "  nullification,"  or  any  of  their 
equivalents ;  that  the  state  confines  herself  to  express 
ing  the  confidence  that  her  sister  states  will  concur 
with  her  in  "  declaring  "  that  the  acts  complained  of 
were  unconstitutional ;  that  "  the  necessary  and  proper 

1  Rives,  of  Virginia,  during  the  debate  in  1833  on  Calhoun's  nulli 
fication  resolutions. 


202          CONSTITUTIONAL  LEGISLATION. 

measures  will  be  taken  by  each  for  cooperating  with 
[her],  in  maintaining  unimpaired  the  authorities, 
rights,  and  liberties,  reserved  to  the  states  respec 
tively  or  to  the  people ; "  and  that,  in  the  mean  time, 
she  contents  herself  with  transmitting  copies  of  the 
resolutions  to  the  executive  authority  of  each  of  the 
other  states,  with  a  request  that  the  same  may  be 
communicated  to  the  legislature  thereof,  and  that  a 
copy  be  furnished  to  each  of  her  senators  and  repre 
sentatives  in  Congress,  —  all  these  facts  are  in  clear 
support  of  this  conclusion.  These  resolutions  were 
expressly  declaratory,  and  proceeding  from  the  legis 
lature  only,  which  was  not  even  a  party  to  the  Con 
stitution,  could  be  declaratory  of  opinion  only.1  No 
where  was  the  right  set  forth  in  the  resolutions,  nor 
broached  in  the  debates  of  which  they  were  the  sub 
ject,  that  a  state  might  resist  the  operation  of  the 
federal  laws  in  any  case  in  which  it  might  deem  an 
act  to  exceed  the  limits  of  the  Constitution  ;  force  is 
not  hinted,  nor  is  there  a  suspicion  of  nullification. 

The  same  remarks  may  be  made  of  the  Kentucky 
resolutions  of  1798  ;  for  the  clause  asserting  the  right 
of  "  every."  state  to  nullify  obnoxious  acts  of  the  gen 
eral  government,  and  prescribing  "  nullification  "  as 
the  rightful  remedy,  does  not  belong  to  the  resolu 
tions  of  1798,  but  to  the  addition  made  in  1799.2 
Thomas  Jefferson  was  the  author  of  the  former,  and, 
said  Madison  in  1831,  "  that  he  ever  asserted  a  right 
in  a  single  state  to  arrest  the  execution  of  an  act  of 
Congress  —  the  arrest  to  be  valid  and  permanent, 
unless  reversed  by  three  fourths  of  the  states  —  is 

1  Madison  to  Robertson,  March  27,  1831. 

2  Madison  to  Cabell,  May  31,  1830. 


JEFFERSON  NO  NULLIFIER.  203 

countenanced  by  nothing  known  to  have  been  said  or 
done  by  him.  In  his  letter  to  Major  Cartwright,  he 
refers  to  a  convention  as  a  peaceable  remedy  for  con 
flicting  claims  of  power  in  our  compound  government ; 
but  whether  he  alluded  to  a  convention  as  prescribed 
by  the  Constitution,  or  brought  about  by  any  other 
mode,  his  respect  for  the  will  of  the  majorities,  as  the 
vital  principle  of  republican  government,  makes  it 
certain  that  he  could  not  have  meant  a  convention  in 
which  a  minority  was  to  prevail  either  in  amending 
or  expounding  the  Constitution."  l  Directly  to  the 
point,  moreover,  is  Jefferson's  own  testimony  in  a 
letter  to  Madison,2  in  1825,  which  suggests  the  pas 
sage  by  the  Virginia  legislature  of  a  new  set  of  resolu 
tions,  having  for  its  subject  the  unconstitutionality 
of  the  federal  government  meddling  with  internal 
improvements.  Regarding  opposition  as  futile,  the 
author  seeks  safety  in  flying  before  the  storm,  and  in 
constitutionalizing  by  an  amendment  "  the  acts  which 
we  have  declared  to  be  usurpations  ; "  but  he  prom 
ises  for  the  state,  and  enjoins  upon  its  citizens, 
acquiescence  "  until  the  legislature  of  the  United 
States  shall  otherwise  and  ultimately  decide." 

Thus  do  the  terms  themselves  of  the  Kentucky  and 
Virginia  resolutions  of  1798  forbid  the  inference 
that  force,  on  the  part  of  the  states  or  of  any  of 

1  Madison   to   Townsend,  December   18,  1831  ;    and   see   Benton, 
Thirty  Years'  View,  I,  chap.  Ixxxvii,  pp.  347-360,  for   extracts  of 
debate  on  the  resolutions  in  the  legislature  of  Virginia,  and  for  Madi 
son's  explanations.     See  also  Madison's  Report  to  the  Virginia  Legis 
lature  of  1799-1800,  commonly  called  "  the  Report  of  1800 ;  "  Elliot's 
Debates,  528  et  seq. ;  2  Benton's  Debates  of  Congress,  373 ;  Nicolson's 
Debates  in  the  Virginia  Assembly  of  1798  ;  Stephens'  War  between 
the  states,  441  et  seq. ;  Story's  Commentaries,  sect.  1289  n. 

2  December  24,  1825. 


204          CONSTITUTIONAL  LEGISLATION. 

them,  to  abrogate  a  law  of  the  United  States,  or  to 
nullify  its  operation,  was  within  their  purview.  The 
right  of  revolution,  even,  was  not  referred  to  nor 
hinted  at ;  but  this  right,  which  is  a  sacred  one  and 
which  is  not  to  be  gainsaid,  is  presumably  ever  in 
contemplation  of  the  freeman,  and  it  is  referred  to 
here  as  something  which  might  well  have  been  alluded 
to  under  stress  of  the  circumstances  which  provoked 
the  resolutions.  In  short,  to  adopt  the  succinct  sum 
mary  of  Benton,1  their  intention  was  :  1.  By  a  solemn 
declaration  of  opinion,  calculated  to  operate  on  public 
sentiment,  to  induce  the  cooperation  of  other  states 
in  like  declarations.  2.  To  make  a  direct  representa 
tion  to  Congress,  with  a  view  to  obtain  a  repeal  of  the 
acts  complained  of.  3.  To  represent  to  their  respect 
ive  senators  their  wish  that  two  thirds  thereof  would 
propose  an  explanatory  amendment  to  the  Constitu 
tion.  4.  By  the  concurrence  of  two  thirds  of  the 
states,  to  cause  Congress  to  call  a  convention  for  the 
same  object. 

It  was  the  abuse  of  the  resolutions  of  1798  which 
led  to  after-woes  of  the  republic  ;  or  rather,  it  was 
the  use  of  that  bird  of  ill-omen,  the  Kentucky  resolu 
tion  of  1799,  whereby  misconstruction  was  put  upon 
all  the  resolutions,  and  they  were  made  to  appear  as 
sources  of  false  doctrine.  Inasmuch  as  the  nullifica 
tion  ordinance  of  South  Carolina  in  1832  is  to  be 
attributed  to  this  abuse,  and  in  the  great  debate 
which  followed,  the  term  "  compact,"  and  the  princi 
ples  underlying  the  Constitution  and  the  resolutions, 
received  exposition  at  the  hands  of  such  expounders 
as  Calhoun  and  Webster,  it  may  be  well  to  anticipate 

1  Thirty  Years'  View,  i,  353. 


CREED   OF  THE   DEMOCRATIC  PARTY.    205 

a  stage  of  history,  and  ascertain  what  view  the  gener 
ation  succeeding  that  of  Madison  and  Jefferson  took 
of  the  resolutions.  Both  of  the  great  parties  involved 
in  the  discussion  laid  the  doctrine  of  nullification  at 
the  doors  of  the  Kentucky  and  Virginia  legislatures  ; 
one  of  these  parties  asserting  that  the  truth  was  not 
in  them,  and  the  other  affirming  that  the  truth,  as 
ascertained  by  itself,  was  there  to  be  found.  The 
judgment  of  the  third  generation  is,  unquestionably, 
that  both  of  these  assertions  are  untrue  :  that  the  res 
olutions  of  1798  cannot  be  held  accountable  for  the 
doctrines  of  nullification  and  of  secession,  nor  that 
they  presented  a  false  (though  not  unbiassed)  exposi 
tion  of  the  rights  of  the  states. 

The  doctrines  enunciated  in  these  resolutions  became 
the  creed  of  what  in  later  days  was  known  as  the 
Democratic  party,  and  were  at  once  universally  ac 
cepted  throughout  the  South  or  state-rights  section  of 
the  United  States. 

The  element  of  nationality  introduced  into  the  Con 
stitution  of  1788  became  aggressive  as  soon  as  the  new 
government  went  into  operation,  and  its  consolidating 
tendency  called  forth  the  resistance  of  the  strict-con- 
structionists  in  defence  of  the  states  whose  rights  it 
threatened  to  absorb.  The  state-rights  party  was  the 
antitype  of  the  national  party,  and  it  sought  to  pre 
serve  the  equilibrium  between  the  states  and  the  gen 
eral  government.  To  do  this,  it  insisted  that  the  term 
"  state "  meant  the  people  composing  the  thirteen 
political  societies,  in  their  highest  sovereign  capacity, 
because  in  this  sense  the  Constitution  was  submitted 
to  the  "  states,"  in  this  sense  the  "  states  "  ratified  it, 
and  in  this  sense  of  the  term  "  states  "  they  are  conse- 


206          CONSTITUTIONAL  LEGISLATION. 

quently  parties  to  the  compact  from  which  the  powers 
of  the  federal  government  result :  that  the  compact 
ought  to  have  the  interpretation  plainly  intended  by 
the  parties  to  it,  and  that  it  ought  to  have  the  execu 
tion  and  effect  intended  by  them ;  for,  if  the  powers 
granted  be  valid,  it  is  solely  because  they  are  granted, 
and  if  the  granted  powers  are  valid,  because  granted, 
all  other  powers  not  granted  must  not  be  valid.  The 
states,  then,  being  parties  to  the  constitutional  compact 
and  in  their  sovereign  capacity,  it  follows  of  necessity 
that  there  can  be  no  tribunal  above  their  authority,  to 
decide  in  the  last  resort  whether  the  compact  made 
by  them  be  violated ;  and,  consequently,  that,  as  the 
parties  to  it,  they  must  themselves  decide  in  the  last 
resort  such  questions  as  may  be  of  sufficient  magni 
tude  to  require  their  interposition.  In  the  case  of  an 
intimate  and  constitutional  union,  like  that  of  the 
United  States,  it  is  evident  that  the  interposition  of 
the  parties,  in  their  sovereign  capacity,  can  be  called 
for  by  occasions  only,  deeply  and  essentially  affecting 
the  vital  principles  of  their  political  system.1 

Madison,  in  expressing  these  views,  wished  that  the 
perfection  of  language  admitted  less  diversity  in  the 
signification  of  the  word  "  states,"  but  took  comfort 
in  the  thought  that  little  inconvenience  was  produced 
by  it,  where  the  true  sense  can  be  collected  with  cer 
tainty  from  the  different  applications.  In  this  in 
stance,  it  was  clear  to  him  that  the  parties  to  the 
compact  meant,  by  the  word  "  state,"  the  people  com 
posing  that  political  society.  The  commentator  of  to 
day  must  regret  that  the  plural  term  "  peoples  "  was 
neither  in  general  nor  special  use  by  English-speaking 

1  Madison's  Report  on  the  Virginia  Resolutions. 


THE   THIRTEEN  PEOPLES.  207 

writers  of  that  period,  for,  if  the  term  "  states  "  meant 
the  people  of  the  several  states,  much  of  the  confusion 
resulting  from  the  attempt  to  ascertain  who  the  parties 
to  the  compact  were,  would  have  been  obviated  by  the 
employment  of  the  term  "  peoples."  The  contention 
itself,  for  example,  over  the  construction  of  the  ex 
pression  in  the  preamble  of  the  Constitution,  "We 
the  people  of  the  United  States,"  would  not  have 
occurred,  for  if  "  people  "  here  meant  "  peoples,"  the 
interpretation  that  derives  the  Constitution  from  the 
act  of  a  nation  would  have  had  no  foundation,  and 
therefore  could  not  have  taken  place. 

Contemporaneous  evidence  of  intention  by  the  par 
ties  themselves  is  the  strongest  external  evidence 
possible  for  a  compact,  and  this  evidence  is  to  be 
found  in  the  ratifications  of  the  Constitution  by  the 
several  states.  These  ratifications  were  all  made  by 
the  "  delegates  "  or  "  deputies  "  of  each  state,  "  in  the 
name  of  the  people  "  of  that  state,  except  in  the  cases 
of  Georgia  and  Delaware,  by  whom  the  equivalent, 
"  for  and  in  behalf  of  ourselves  and  our  constituents," 
was  used,  and  in  the  instance  of  North  Carolina,  which 
employed  the  particularizing  term,  "  in  behalf  of  the 
freemen,  citizens  and  inhabitants  of  North  Carolina :  " 
so  that  there  can  be  no  question  that  the  people  of 
each  of  these  "  political  societies  "  ratified  the  Consti 
tution,  and  was  a  several  party  to  that  instrument. 
Nor  can  it  be  doubted  that,  when  grouped  together  in 
one  term,  they  were  thirteen  peoples. 

That  this  fact  was  recognized  universally  at  the 
time  of  ratification,  and  continued  to  be  so,  until  the 
expansion  of  the  principles  of  nationality  called  it 
into  question,  is,  from  the  evidence  afforded  by  the 


208          CONSTITUTIONAL  LEGISLATION. 

action  of  the  several  states  in  amending  the  Constitu 
tion,  from  the  language  used  upon  the  floor  of  Con 
gress  by  senators  and  representatives,  from  that  used 
by  popular  speakers  and  by  the  press,  and  particu 
larly  from  that  of  state  papers  and  of  the  leading 
expounders  of  the  Constitution  in  debate  and  in  cor 
respondence,  private,  official,  or  professional,  equally 
indisputable. 

The  retirement  of  slavery  to  the  country  south  of 
Mason  and  Dixon's  line  and  the  Ohio  River,  and  the 
preponderating  development  of  population  and  mate 
rial  strength  in  the  country  north  of  this  line  of  de 
limitation,  divided  the  United  States  into  two  sections, 
and  entailed  upon  them  all  the  evils  which  sectional 
ism  can  inflict.  It  needs  no  demonstration  that, 
where  different  peoples  unite  in  a  common  form  of 
government,  anything  inconsistent  with  the  preserva 
tion  of  their  unity  is  dangerous  to  their  welfare,  and 
that  sectionalism,  or  the  conflict  between  interests 
which  are  peculiar  to  sections  of  territory,  is  of  such 
a  nature.  One  of  the  evils,  and  the  main  and  most 
virulent  one  which  sectionalism  in  the  United  States 
has  developed,  has  been  the  sectionalizing  as  well  of 
social  and  political  principles  as  of  material  interests. 

This  paradoxical  effect  on  principles,  which  are  im 
pulses  supposed  to  be  general  in  their  nature,  is  due 
to  the  fact  that  principles  are  the  sources  of  rules  of 
action,  and  inasmuch  as  the  action  of  political  bod 
ies  is  governed  solely  by  their  interests,  the  motives  of 
action,  principles,  respond  to  the  interests  of  a  locality 
and  become  sectionalized  with  it.  If  there  be  any 
doubt  of  this  being  a  vital  and  active  force  in  politics, 
this  doubt  will  be  dispelled  by  the  most  cursory 


SECTIONALISM.  209 

glance  at  the  dealings  of  the  great  powers  with  each 
other,  or,  to  come  nearer  home,  at  the  votes  in  the 
Congress  of  the  United  States  affecting  the  interests 
of  localities  ;  notably  those  upon  the  tariff  question, 
which  has  invariably  divided  parties.  There  never 
has  been  a  time  since  this  question  came  before  Con 
gress,  that  members  of  a  party  which  has  strenuously 
maintained  that  any  tariff,  except  for  revenue  only,  is 
unconstitutional,  have  not  been  found  voting  for  a 
protective  tariff  ;  nor,  on  the  other  hand,  that  mem 
bers  of  a  party  of  which  "  protection  "  is  a  cardinal 
doctrine  have  not  strenuously  opposed  it.  A  map  of 
the  country,  shaded  according  to  the  votes  for  and 
against  a  tariff,  would,  especially  in  these  later  days  of 
mineral  and  commercial  development,  appear  spotted 
with  areas  corresponding  to  the  votes  in  the  general 
legislature,  and  these  areas  would  consequently  indi 
cate  the  "  principles  "  which  had  their  origin  in  the 
interests  of  these  localities. 

The  bending  of  "  our  notions  to  our  dealing "  has 
never  been  exemplified  on  a  greater  scale,  or  in  a 
clearer  manner,  than  it  was  in  the  course  run  by  sec 
tionalism  in  this  country.  So  long  as  the  chief  inter 
est  of  the  North  lay  in  navigation  and  agriculture,  an 
interest  which  was  not  in  competition  with  that  of  any 
other  section,  her  principles  were  general,  and  the 
Constitution  was  a  "  compact  "  to  which  the  several 
states  had  "  acceded "  in  their  capacity  of  "  sover 
eignties  ;  "  there  was  no  tribunal  of  appeal  for  the 
parties  to  this  compact,  and  the  assertions  of  Virginia 
and  New  York  in  their  ratifications  of  the  Constitu 
tion,  that  the  powers  granted  in  this  instrument,  being 
derived  from  the  people,  might  be  resumed  by  them, 


210          CONSTITUTIONAL  LEGISLATION. 

whensoever  the  same  shall  be  perverted  to  their  in 
jury  or  oppression,  was  unquestioned. 

Time,  however,  wrought  its  changes.  The  policy 
of  Alexander  Hamilton  had  proved  to  be  favorable  to 
that  part  of  the  country  where  population  was  con 
centrated,  but  it  had  not  been  favorable  where  popu 
lation  was  dispersed.  It  accumulated  money  in  the 
large  cities,  making  them  financial  centres ;  the  South 
had  no  large  cities.  It  fostered  the  commercial 
classes ;  but,  from  the  constitution  of  southern  so 
ciety,  the  commercial  class  of  the  South  was  insignifi 
cant,  and,  to  all  appearances,  would  remain  such.  It 
undertook  to  create  a  manufacturing  class,  and  suc 
ceeded  in  doing  so  ;  but  the  Southerners  were  not  a 
manufacturing  people,  for  slave  labor  was  not  skilled 
labor,  nor  could  it  be  made  skilled.  Moreover,  immi 
gration  followed  northern  latitudes  in  its  progress 
west,  and  the  South  thus  lacked  this  augmentation  of 
population,  while  the  balance  of  representation  was 
inclining  against  it  from  day  to  day.  It  is  not  sur 
prising  that,  as  the  material  importance  of  the  South 
waned  and  it  began  to  experience  trepidation  con 
cerning  its  political  future,  the  self-importance  of  the 
North  rose,  and  that  it  manifested  a  disposition  to 
aggrandize  wealth  and  power  even  at  the  expense  of 
the  South  :  and  this  it  did  by  obtaining  an  adjust 
ment  of  taxation,  the  inequality  of  which  was  favor 
able  to  it,  by  bounties  to  navigation  and  fishing,  and 
above  all  by  protective  tariffs.  The  South  was  the 
market  of  the  North :  and  a  tariff  for  protection 
transformed  New  England  and  Pennsylvania  into 
manufacturing  communities  whose  product  was  to  be 
taken  by  the  South  ;  for,  owing  to  the  lack  of  a  mer- 


A   SENSE   OF  GRIEVANCE.  211 

chant  service  that  should  bring  foreign  productions  to 
her  doors,  the  South  would  be  compelled  to  buy  of  the 
North  at  the  latter's  prices. 

Such  was  the  view  taken  by  the  South  of  her  eco 
nomical  relations  to  the  North.  The  forecast  she 
made  of  her  fortunes  was  not  a  cheering  one,  nor  was 
it  brightened  by  the  reflection  that,  in  ceding  the 
Northwest  Territory  to  the  United  States,  she  had 
increased  northern  territory,  and  had  provided  homes 
for  the  immigrants  who  were  rapidly  strengthening 
her  rival's  ranks.  She  recalled,  too,  the  debates  in 
the  Constitutional  Convention  which  ended,  as  she 
conceived,  in  yielding  too  much  to  the  North  on  the 
questions  of  representation  and  taxation ;  she  re 
gretted  that  she  had  not  made  a  more  determined 
stand  against  committing  so  unreservedly  the  regula 
tion  of  commerce  to  the  federal  government,  and  she 
had  South  Carolina  to  remind  her  of  the  willingness 
of  New  England  to  allow  the  claim  of  right  in  Spain 
to  control  the  navigation  of  the  lower  Mississippi  and 
to  close  the  mouths  of  the  river,  —  now  that  the  North 
had  gained  possession  of  the  Northwest,  it  was  ready 
to  look  on  with  indifference  while  the  Southwest  was 
rendered  valueless  to  the  South.  These  proofs,  as  $he 
South  chose  to  consider  them,  of  northern  rapacity, 
and  of  a  settled  policy  on  the  part  of  the  North  to 
look  to  its  own  interest  regardless  of  the  interests  of 
others,  confirmed  the  people  of  that  section  in  the 
unfavorable  opinion  which  they  had  entertained  of 
the  northern  people  for  a  period  long  before  they 
had  combined  with  them  in  resistance  to  the  mother- 
country.  Rightly  or  wrongly,  the  South  started  out 
in  its  federal  life  with  a  sense  of  grievance  acquired 


212  CONSTITUTIONAL   LEGISLATION. 

from  its  political  connection  with  its  neighbors,  and 
with  the  ancient  unsocial  disposition  towards  them 
greatly  aggravated :  but  that  it  could  not  lay  upon 
the  North  the  burden  of  measures  which  in  later  days 
it  denounced  as  unfair  and  unconstitutional  is  shown 
by  the  facts,  that  the  obnoxious  bank  was  reinstated 
by  the  aid  of  southern  votes  and  the  approval  of  a 
southern  President,  and  that  the  tariff  of  1816  re 
ceived  southern  support  and  the  qualified  approbation 
of  John  C.  Calhoun,  the  Argus  of  the  South. 

The  North,  it  need  hardly  be  said,  did  not  admit 
that  this  sense  of  grievance  had  any  foundation ;  for, 
on  its  part,  it  had  carried  away  from  the  Convention 
the  feeling  that  the  South  had  claimed  too  much  in 
the  settlement  of  the  ratio  of  representation  and  tax 
ation,  and  it  retorted  that  the  votes  of-  the  South, 
years  after  the  bank  and  the  protective  systems  had 
had  a  trial,  afforded  convincive  proof  that  these  meas 
ures  had  not  been  regarded  by  that  section  as  unfa 
vorable  to  its  interests,  and  that,  consequently,  they 
were  to  be  accepted  as  conducive  to  the  general  wel 
fare  ;  and  it  pointed  to  the  southern  votes  on  the  sub 
ject  of  naturalization  as  evidence  that  the  incoming 
tide  of  immigration  was  as  congenial  to  the  political 
interest  of  the  South  as  it  was  to  the  material  inter 
est  of  the  North.  The  northern  people  acknowledged 
that  the  South  was  a  market  for  their  manufactures, 
but  they  repudiated  with  abhorrence  the  notion  that 
they  regarded  the  southern  states  as  Great  Britain  had 
regarded  all  her  colonies,  as  mere  factories  for  her 
trade,  but  considered  the  Union  to  be  a  union  of  all 
interests,  political,  social,  and  economical ;  that  it  was 
a  Union  of  states ;  and,  such  was  their  fidelity  to  this 
Union,  that  they  would  preserve  it  at  any  cost. 


DISSOLUTION  A    CONSTANT  MENACE.    213 

How  little  weight  must  be  given  to  the  professions 
of  loyalty  to  the  Union  by  either  section  may  be  esti 
mated  from  the  fact  that,  down  to  the  civil  war  of 
1861,  there  thad  rarely  been  a  time  when  the  danger 
of  dissolution,  at  the  hands  of  one  side  or  the  other, 
was  not  threatening  the  Union.  Recurring  to  the 
Spanish  claim  of  right  to  close  the  lower  Mississippi 
to  our  navigation  (a  contention  contemporaneous  with 
the  institution  of  our  present  government),  one  of  the 
southern  states,  South  Carolina,  made  it  a  reason  for 
hesitation  in  ratifying  the  Constitution,  and  very  prop 
erly  so.  It  was  not  in  accordance  with  propriety,  on 
the  other  hand,  that,  grievous  as  the  loss  of  such  im 
portant  navigation  might  be,  southern  men  should  call 
for  the  dissolution  of  a  Union  which  had  been  just  set 
upon  its  feet.  Nor,  as  the  public  utterances  and  the 
private  correspondence  of  New  England  leaders  dis 
close,  was  there  reason  or  propriety  in  the  threats  of 
dissolution  of  the  general  Union,  and  the  formation 
of  a  particular  one,  embracing  the  New  England 
states  only,  merely  because  the  rampant  federalism 
of  the  locality  had  met  with  a  rebuff.  The  conduct 
of  New  England  during  the  Embargo  and  the  War  of 
1812  has  ever  since  then  received  such  unsparing  con 
demnation,  that  merely  to  mention  it  is  to  reopen  a 
mortifying  chapter  of  our  history ;  but  the  constant 
threats  of  dissolution  which  streamed  from  southern 
sources  on  the  slavery  question  were  equally  reprehen 
sible  with  those  which  had  emanated  from  New  Eng 
land,  or  with  those  which  the  New  York  Clintonians 
had  been  guilty  of  immediately  after  the  adoption  of 
the  Constitution.  In  fact,  if  we  leave  out  "  the  era 
of  good  feeling,"  the  sorrowful  statement  that  the 


214          CONSTITUTIONAL  LEGISLATION. 

continuance  of  the  Union  was  always  a  matter  of 
doubt  is  proved  to  be  true  by  every  page  of  our  his 
tory  ;  and  it  cannot  be  denied  that,  from  the  begin 
ning  of  our  united  existence,  the  dangej*  that  threat 
ened  it  was  the  irrepressible  conflict  between  the 
ideas  and  interests  of  the  North  and  of  the  South,  or, 
in  a  word,  "  sectionalism." 

This  sectionalism  found  expression  in  the  different 
methods  of  construing  the  Constitution.  At  first, 
the  North,  no  less  than  the  South,  regarded  the  Con 
stitution  as  a  compact,  which  had  been  acceded  to  by 
the  state-sovereignties  as  parties,  and  one  which,  in 
the  absence  of  a  superior  who  would  enforce  conjunc 
tion,  could  be  seceded  from  as  it  had  been  acceded  to. 
One  cannot  read  the  writings  of  the  days  which  fol 
lowed  the  adoption  of  the  Constitution  and  fail  to  see 
that  secession  from  the  Union,  or  rather  the  with 
drawal  and  resumption  by  the  states  of  the  delegated 
powers,  was  the  remedy  in  contemplation  of  the  gen 
eration  which  made  the  Constitution ;  that  it  was  re 
garded  as  the  logical  and  natural  remedy,  and  as  the 
only  remedy.  There  is  no  discussion  of  a  choice  of 
remedies ;  it  was  taken  for  granted  that  this  remedy 
existed  by  nature,  that  it  was  present  to  the  minds  of 
those  who  framed  the  compact,  and  that,  should  the 
time  and  occasion  for  applying  it  occur,  it  would  be 
resorted  to  as  a  matter  of  course.  This  general  notion 
precluded  the  idea  of  coercion,  and,  in  fact,  every  sug 
gestion  of  the  kind  met  with  denunciation  on  all  sides. 
It  follows,  then,  that  the  "  interposition  of  the  states," 
asserted  in  the  Virginia  resolutions  to  be  a  "  duty," 
was  a  mild  statement  of  political  obligation,  and  that 
nullification  became  universally  repudiated  afterwards, 


THE  NORTH  CHANGES  FRONT.  215 

not  because  it  was  a  mere  makeshift,  but  because  it 
was,  as  the  anti-Calhoun.  party  in  South  Carolina  held 
it  to  be,  illogical.  Either  the  Constitution  was  a  com 
pact,  or  it  was  the  evidence  of  a  surrender  of  powers: 
secession  or  submission  was  the  only  alternative. 

Whether  the  change  on  the  part  of  the  North  in  its 
views  of  the  Constitution  was  due  to  a  sincere  dispo 
sition  to  evolve  a  great  and  glorious  power  out  of  a 
federation,  or  whether,  according  to  the  taunt  of  the 
South,  it  was  due  to  motives  of  interest  induced  by 
fears  of  losing  its  market,  the  North  certainly  did  ex 
hibit  a  remarkable  change  in  the  way  it  construed  the 
Constitution.  First,  it  denied  that  the  Constitution 
was  a  compact :  and  this  denial  carried  with  it  a  de 
nial  of  the  right  of  any  state  to  secede.  Second,  it 
denied  that  the  several  states  or  peoples  had  been  par 
ties  to  the  transaction,  or  that  there  had  been  "  peo 
ples  "  at  all,  but  asserted  that  the  Constitution  was 
an  ordinance  of  one  whole  people  of  the  United  States, 
or  nation.  Third,  that  the  powers  enumerated  in  this 
instrument  had  not  been  delegated  but  surrendered, 
and,  moreover,  were  but  outlines  to  be  filled  in  or  to 
be  supplemented  by  others  which  should  be  deemed  to 
be  necessary  or  even  convenient  by  the  nation. 

With  the  crystallization  of  these  doctrines  into  a 
creed  or  "  platform,"  the  attitude  of  the  North  became 
more  and  more  determined,  and  she  opposed  through 
the  Whig  party  any  pretensions  made  by  the  South 
through  the  Democratic  party.  She  became  less  and 
less  conciliatory,  until  at  length,  throwing  aside  concili 
ation,  she  took  a  positive  stand,  and  avowed  her  deter 
mination  not  to  permit  further  territorial  extension  of 
slavery.  This  lent  her  the  appearance  of  aggression, 


216          CONSTITUTIONAL  LEGISLATION. 

and  the  occasion  of  it  was  the  application  of  the  terri 
tory  of  Missouri  to  be  admitted  into  the  Union. 

During  its  session  of  1818,  the  territorial  legislature 
of  Missouri  made  application  for  authority  to  frame 
a  constitution  and  establish  a  state  government.  A 
bill  to  effect  this  purpose  was  introduced  into  the 
House  of  Representatives  at  Washington,  and  reached 
its  consideration  in  February,  1819,  in  the  course  of 
which  Mr.  Tallmadge,  of  New  York,  offered  the  follow 
ing  proviso  :  "  That  the  further  introduction  of  slavery 
or  involuntary  servitude  shall  be  prohibited,  except 
for  the  punishment  of  crimes,  whereof  the  party  shall 
have  been  duly  convicted ;  and  that  all  children  born 
within  the  State  after  the  admission  thereof  shall  be 
free  at  the  age  of  twenty-five  years."  This  amend 
ment  was  to  be  made  a  condition  precedent  to  admis 
sion  to  the  Union,  and  it  precipitated  a  debate  whose 
duration  and  temper  disclosed  a  conflict  of  principle 
and  sentiment  which,  now  dormant  now  active,  in  the 
course  of  time  became  irrepressible,  and  at  last  burst 
forth  in  a  conflict  of  arms.  The  reason  of  this  was 
that,  as  Ruf  us  King  bluntly  admitted,  it  was  a  struggle 
for  political  power,  and  that  this  was  an  effort  to  extir 
pate  slavery  from  soil  where  it  existed  by  law ;  for 
this  territory  was  a  part  of  the  Louisiana  Purchase,1  in 

1  Louisiana  Purchase  :  26th  October,  1803,  an  act  to  enable  the  Pres 
ident  to  take  possession  of  the  ceded  territory  passed  in  the  Senate  by  a 
vote  of  26  to  6  and,  on  the  28th,  in  the  House  by  89  to  23.  J.  Q.  Adams 
was  among1  the  stoutest  supporters  of  the  bill,  passed  in  the  House  on 
the  29th,  for  creation  of  stock  to  carry  the  treaty  into  effect.  Novem 
ber  30,  the  Spanish  handed  the  colony  over  to  the  French,  and,  20th 
December,  the  French  transferred  it  to  the  United  States.  9th  March, 
1804,  St.  Louis  was  handed  over  by  the  Spaniards  to  Captain  Stod- 
dard,  U.  S.  Army,  who  had  been  commissioned  to  receive  it  on  behalf 


THE  LOUISIANA   PURCHASE.  217 

which  slavery  had  always  existed,  and  in  which  it  still 
existed  under  the  treaty  obligations  that  were  condi 
tions  of '  its  acquisition.  Slave  territory  it  had  been 
under  Spanish  and  French  domination,  slave  territory 
it  had  been  when  acquired  by  the  United  States,  and 
slave  territory  it  was  when  it  made  its  application  to 
enter  the  Union  as  a  state.  There  was  nothing  there 
fore  in  its  status  at  law  to  provoke  opposition  to  its 
admission  as  a  slave  state,  and  such  opposition  must 
have  had  its  motive  in  something  else  than  opposition 
to  unlawful  conditions  or  measures.  The  most  natural 
motive  could  be  found  in  the  qualities  of  human  nature, 
and  at  once  it  was  attributed  to  the  sense  of  antaofo- 

O 

nism  to  slavery  and  to  the  spirit  of  aggrandizement  in 
the  North,  which  sought  supremacy  of  political  power 
at  the  cost  of  the  South. 

There  was  ground  for  this  alarm  in  the  southern 
states.  In  1819,  Alabama  had  been  admitted  with 
out  the  opposition  of  the  free  states,  although  by  this 
admission  the  South  gained  a  preponderance  of  votes 
in  the  Senate,  for  the  reason,  that,  when  Georgia 
ceded  the  territory  comprising  this  state,  she  made 
certain  stipulations  in  respect  to  slavery,  that  carried 
this  form  of  labor  along  with  the  soil.  But  so  was 
the  soil  of  which  Missouri  formed  a  part,  slave  territory 
under  conditions  just  as  solemn  and  effective  :  for  the 
treaty  under  which  the  soil  was  acquired  stipulated,  as 

of  France,  and  10th  March,  1804,  Captain  Stoddard  transferred  it  to 
the  United  States.  The  Purchase  was  at  once  divided  by  act  of  Con 
gress  into  two  parts  :  all  north  of  33°  north  latitude  being1  formed 
into  a  district  styled  the  District  of  Louisiana,  and  for  judicial  and 
administrative  purposes  being1  attached  to  the  territory  of  Indiana. 
March  3,  1805,  an  act  of  Congress  erected  the  District  into  a  Territory 
of  the  first  or  lowest  g'rade,  under  the  name  of  the  Territory  of  Loui 
siana.  This  detached  it  from  Indiana. 


218          CONSTITUTIONAL  LEGISLATION. 

conditions  to  the  transfer  of  possession,  that  "  Louisi 
ana,  with  all  its  rights  and  appurtenances  as  fully  and 
in  the  same  manner  as  they  had  been  acquired  by  the 
French  Republic  from  Spain,"1  should  be  the  thing 
transferred,  and  Article  III,  written  by  Bonaparte  him 
self,  further  stipulated,  that  "the  inhabitants  of  the 
ceded  territory  shall  be  incorporated  in  the  Union  of  the 
United  States,  and  admitted  as  soon  as  possible,  accord 
ing  to  the  principles  of  the  Federal  Constitution,  to  the 
enjoyment  of  all  the  rights,  advantages,  and  immunities 
of  citizens  of  the  United  States ;  and  in  the  mean  time 
they  shall  be  maintained  and  protected  in  the  free 
enjoyment  of  their  liberty,  property,  and  the  religion 
which  they  prefer."  If,  therefore,  the  stipulations  of 
Georgia  in  respect  to  Alabama  had  been  observed,  so 
should  have  been  the  stipulations  of  France  in  respect 
to  the  Louisiana  Purchr.se,  and  as  no  satisfactory  re 
ply  could  be  made  to  this  assertion,  it  is  reasonable  as 
well  as  natural  that  the  restriction  insisted  upon  by 
the  states  should  have  a  motive  other  than  the  good  of 
all  the  states.  The  blunt  admission  of  Mr.  King  dis 
pelled  the  last  doubt,  and  that  the  South  was  justified 
in  placing  an  unfavorable  interpretation  upon  this  en 
forced  extirpation  of  slavery  from  its  borders  is  made 
clear  by  the  remarks  of  John  Quincy  Adams  during 
the  debate  on  the  admission  of  the  adjoining  territory 
of  Arkansas.  Said  he,  "  She  is  entitled  to  admission 
as  a  slave  state  ...  by  virtue  of  that  article  in  the 
treaty  for  the  acquisition  of  Louisiana  which  secures 
to  the  inhabitants  of  the  ceded  territories  all  the  rights, 
privileges,  and  immunities  of  the  original  citizens  of 
the  United  States ;  and  stipulates  for  their  admission, 

1  Carr's  Missouri,  78. 


PREEXISTING  SLAVERY.  219 

conformably  to  that  principle,  in  the  Union.  Louisi 
ana  was  purchased  as  a  country  wherein  slavery  was 
the  established  law  of  the  land.  As  Congress  have 
not  power  in  time  of  peace  to  abolish  slavery  in  the 
original  states  of  the  Union,  they  are  equally  desti 
tute  in  those  parts  of  the  territory  ceded  by  France  to 
the  United  States  under  the  name  of  Louisiana,  where 
slavery  existed  at  the  time  of  the  acquisition.  .  .  .  Ar 
kansas,  therefore,  comes,  and  has  the  right  to  come,  into 
the  Union  with  her  slaves  and  her  slave  laws.  It  is 
written  in  the  bond,  and,  however  I  may  lament  that 
it  was  so  written,  I  must  faithfully  perform  its  obliga 
tions."  1  This  was  spoken  by  a  northern  man,  an  ex- 
President,  and  carries  with  it  the  force  not  only  of  the 
facts,  but  of  an  admission.  As  the  circumstances  in 
respect  to  Arkansas  were  precisely  the  same  as  those 
of  Missouri,  it  follows  that  the  legal  status  of  the  two 
territories  was  the  same,  and  that  Missouri  was  en 
titled  under  the  treaty  stipulations,  and  consequently 
under  the  laws  of  the  United  States,  to  admission  as 
a  slave  state,  just  as  Louisiana  had  been  admitted 
in  1812,  and  that  the  attempts  on  the  part  of  the 
House  of  Representatives  to  force  her  to  put  away 
slavery  as  a  condition  precedent  to  her  admission  was 
an  unlawful  exertion  of  power,  and  one  not  warranted 
by  the  Constitution.2 

But  the  repugnance  of  the  northeastern  part  of  the 
Union  to  the  extension  of  slavery,  which  had  already 
manifested  itself  at  the  time  of  the  acquisition  of  Loui 
siana,  now  assumed  an  aggressive  attitude,  and  took  a 

1  Benton's  Abridgment  of  the  Debates,  vol.  xiii,  33. 

2  Carr's  Missouri,  144  ;  Speech  of  William  Pinkney  during  the  de 
bate. 


220  CONSTITUTIONAL  LEGISLATION. 

determined  stand  against  the  admission  of  Missouri  as 
a  slave  state,  notwithstanding  the  perils  to  the  repub 
lic  that  lay  in  a  sectional  policy,  and  a  policy  that  was 
not  inspired  by  purely  political  motives,  but  which 
found  its  inspiration  in  moral  sentiment. 

To  a  clear  understanding  of  the  scope  and  effect  of 
this  opposition,  it  must  be  borne  in  mind  that,  at  the 
time  of  the  application  of  Missouri  for  admission  to 
the  Union,  this  territory  lay  on  the  uttermost  western 
part  of  the  republic.  Beyond  its  limits  the  Spanish 
Possessions  stretched  towards  the  west :  between  it  and 
the  state  of  Louisiana  on  the  south  was  the  territory 
now  embraced  in  the  state  of  Arkansas,  then  occupied 
by  savages,  while  to  the  north  of  it  extended  the  re 
mainder  of  the  Louisiana  Purchase. 

The  ordinance  of  1787  had  previously  extinguished 
slavery  in  the  northwest  portion,  and,  as  climatic  con 
ditions  were  not  favorable  to  the  northward  extension 
of  slavery,  the  only  area  open  to  the  addition  of  slave 
states  was  the  territory  now  comprised  in  the  states 
of  Arkansas  and  Missouri.  Under  the  topographical 
conditions  of  the  United  States  territory  at  that  time, 
the  physical  limitations  of  slavery  may  be  considered 
as  ascertained,  and  the  further  extension  of  slavery 
beyond  those  limits  was,  to  all  appearance,  an  impos 
sibility.  It  was  contemporaneous  with  the  events  that 
led  to  the  Missouri  Compromise,  that  these  boundaries 
were  determined  in  the  treaty  with  Spain  by  which 
Florida  was  acquired.  These  two  events  being  before 
the  public  eye  at  one  and  the  same  time,  it  seems  reason 
able  that  the  anti-slavery  sentiment  should  have  found 
a  sufficient  guaranty  against  the  extension  of  this  in 
stitution  in  the  fact  that  there  was  no  room  further 


REPUGNANCE   TO  SLAVERY  EXTENSION.    221 

for  it  to  expand.  There  was  still  another  obstacle  to 
slavery  extension,  and  the  more  formidable  that  it  ex 
isted  in  the  indisposition  of  the  South  itself  to  enlarge 
its  area  westward.  At  that  time,  John  Quincy  Adams, 
who,  as  Secretary  of  State,  was  negotiator  and  osten 
sible  author  of  the  treaty,  uttered  an  expression  which 
was  much  commented  upon,  but  the  more  it  was  dis 
cussed  the  more  enigmatical  it  remained.  It  was  this  : 
"  Spain  had  offered  more  than  we  accepted,  and  she 
dare  not  deny  it."  It  is  now  known  l  that  Spain  had 
embraced  in  her  offer  to  us  the  country  included  in 
the  present  state  of  Texas  and  to  the  north  of  it,  and 
that  we  declined  this  offer.  The  reason  of  our  doing 
so  is  to  be  found  in  a  letter  from  Monroe  to  Andrew 
Jackson,2  and  is  thus  set  forth  :  "  Having  long  known 
the  repugnance  with  which  the  eastern  portion  of  our 
Union,  or  rather  some  of  those  who  have  enjoyed  its 
confidence  (for  I  do  not  think  that  the  people  them 
selves  have  any  interest  or  wish  of  that  kind),  have 
seen  its  aggrandizement  to  the  West  and  South,  I  have 
been  decidedly  of  opinion  that  we  ought  to  be  content 
with  Florida  for  the  present,  and  until  the  public 
opinion  in  that  quarter  shall  be  reconciled  to  any  fur 
ther  change.  I  mention  these  circumstances  to  show 
you  that  our  difficulties  are  not  with  Spain  alone,  but 
are  likewise  internal,  proceeding  from  various  causes, 
which  certain  men  are  prompt  to  seize  and  turn  to  the 
account  of  their  own  ambitious  views."  In  like  terms 
Monroe  wrote  to  Jefferson,  who,  unlike  Jackson,  re 
mained  unmoved  by  them,  and  steadfastly  though  una- 

1  Benton's  Thirty  Years  in  the  United  States  Senate,  vol.  i,  chapter 
vi. 

2  May  22,  1820. 


222          CONSTITUTIONAL  LEGISLATION. 

vailingly  opposed  the  treaty.  Thus  it  appears  that  un 
willingness  on  the  part  of  southern  men  to  antagonize 
the  North  was  the  real  reason  that  led  the  United 
States  to  reject  the  offer  of  territory  which,  from  the 
nature  of  the  case,  would  become  slave  states  ;  and 
indeed,  at  that  time,  throughout  the  whole  South  (un 
less  those  states  now  known  as  "  the  Cotton  states " 
be  excepted),  a  repugnance  to  the  extension  of  slavery, 
if  not  an  abiding  one,  was  as  general  as  it  was  at  the 
North,  and  there  is  no  reason  to  doubt  that,  but  for 
discordant  measures  and  untoward  events,  it  would 
have  proved  to  be  as  lasting. 

Having  taken  its  stand  upon  the  Tallmadge  amend 
ment,  the  House  passed  the  bill  as  amended ;  where 
upon,  when  it  came  before  the  Senate,  the  amendment 
was  stricken  out,  and  the  bill  was  returned  to  the 
House  in  its  original  shape.  Both  bodies,  however, 
refused  to  yield,  and  the  bill  was  lost  by  the  adjourn 
ment  of  this  Congress  sine  die. 

Upon  the  opening  of  the  Sixteenth  Congress  in  De 
cember,  1819,  the  admission  of  Missouri  again  came 
up,  and  the  action  of  the  House  clearly  confirmed  the 
truth  of  Mr.  King's  assertion  that  the  struggle  was 
for  political  power.  If  the  interests  of  the  country 
were  henceforth  to  be  governed  by  sectional  consider 
ations,  it  is  evident  that  any  settlement  of  the  question 
that  would  annul  the  preponderance  of  the  South  in 
the  Senate  and  pave  the  way  to  the  aggrandizement  of 
the  northern  states  would  be  acceptable  to  the  latter. 
Accordingly,  as  an  offset  to  the  admission  of  Ala 
bama,  the  North  presented  Maine  for  admission  to  the 
Union.  This,  the  most  northeastern  possession  of  the 
United  States,  was  not  the  property  of  the  federal 


MAINE  A   MAKE-WEIGHT.  223 

Union,  but  belonged  to  Massachusetts,  one  of  the 
original  states.  Cut  off  from  the  mother-state  by 
the  interposition  of  New  Hampshire,  this  region  had 
experienced  the  evils  of  remoteness,  and  had  long 
indulged  in  aspirations  to  sovereignty  of  its  own. 
Massachusetts  was  one  of  the  strongholds  of  the  Fed 
eralist  party,  but  the  sympathies  of  the  inhabitants  of 
Maine  were  with  the  Democratic  party.  The  circum 
stances  arising  out  of  the  contest  over  Missouri  proved 
to  be  Maine's  opportunity,  and  prompt  advantage  was 
taken  of  it.  She  made  her  application,  and  the  Sen 
ate  adroitly  took  the  position  that  the  two  measures 
were  to  be  coupled  together,  and  that  if  Missouri  was 
to  be  admitted  with  restriction  of  slavery,  Maine  should 
not  be  admitted  ;  but  if  Missouri  came  in  without 
such  restriction,  the  admission  of  Maine  should 
promptly  follow.  This  understanding  (for  the  alter 
native  was  not  openly  admitted)  prevailed,  and  the 
sooner  that  many  northern  Democrats,  for  the  moment 
swept  away  from  their  moorings  by  the  stormy  debate 
on  the  admission  of  Missouri,  were  glad  to  avail  them 
selves  of  this  opportunity  to  regain  their  old  footing 
in  their  party.  As  the  admission  of  Maine  would  se 
cure  two  democratic  senators,  and  thus  offset  the  dis 
turbance  occasioned  by  the  admission  of  Alabama, 
while  the  accession  to  the  democratic  side  of  the  Sen 
ate  of  two  senators  from  Missouri  would  afford  still 
greater  democratic  preponderance  in  that  body,  it  is 
clear  that  the  opportunity  to  regain  their  lines  was 
now  offered.  So  far*,  partisan  necessity  was  satisfied: 
but  the  moral  element  which  had  intruded  itself  into 
the  Federal  council  was  not  satisfied,  and  it  obsti 
nately  demanded  compensation  for  the  loss  that  it 


224          CONSTITUTIONAL  LEGISLATION. 

would  sustain  by  the  admission  of  Missouri  as  a  slave 
state.  Accordingly,  a  committee  of  conference  be 
tween  the  Senate  and  House  was  appointed,  and  after 
a  dead-lock  to  legislation  of  several  weeks,  during 
which  the  storm  raged  violently,  it  reported  a  series 
of  measures  that  have  been  known  ever  since  as  the 
Missouri  Compromise.  1.  The  clause  prohibiting  sla 
very  was  stricken  from  the  bill  authorizing  the  people 
of  the  territory  to  form  a  constitution.  But,  2,  it 
was  stipulated  that  slavery  should  be  excluded  from 
all  "  the  territory  ceded  by  France  to  the  United 
States,  under  the  name  of  Louisiana,  north  of  36°  30' 
north  latitude/'  3.  Maine  was  to  be  admitted  to  the 
Union.  The  inhabitants  of  Missouri  were  left  to  de 
cide  for  themselves  whether  the  state  should  be  slave 
or  free,  but  the  admission  of  Missouri  was  not  guar 
anteed,  however  clear  was  the  understanding  that  she 
should  be  admitted. 

In  this  compromise,  the  advantages  were  on  the 
part  of  the  North.  The  South  held  nothing  but  its 
own,  but,  1,  by  the  admission  of  Maine,  the  North 
gained  supremacy  in  the  Senate.  2.  She  secured  the 
freedom  from  slavery  of  all  the  vast  Northwest,  to 
which  already  the  lines  of  emigration  were  trending 
as  the  further  seat  of  a  dense  population  :  i.  e.,  she 
extended  the  advantages  she  enjoyed  under  the  ordi 
nance  of  1787  to  the  remainder  and  greater  portion 
of  the  Northwest,  and,  3,  she  had  taken  and  main 
tained  the  position  of  a  power  that  henceforth  was  to 
be  consulted  and  appeased  before  any  expansion  of 
the  South  could  be  made. 

The  first  two  advantages  were  political,  and,  if  not 
above  criticism,  were  at  any  rate  conceded  to  be  legiti- 


THE  MISSOURI  COMPROMISE.  225 

mate  subjects  of  political  action.  This  cannot  be  said 
of  the  third  and  last  advantage,  for  it  arrayed  two 
sections  against  each  other,  and  was  an  unmistakable 
declaration  that  the  growing  power  of  one  of  these 
sections  was  no  longer  to  be  restrained  within  strictly 
political  limits.  The  restraints  of  political  character 
once  broken  through,  what  was  to  regulate  or  limit  the 
future  action  of  a  power  that  appealed  to  the  vague 
and  unsubstantial  inspiration  of  moral  motives? 

This  compromise  was  carried  into  effect,  and  by  a 
majority  of  the  southern  members  of  each  House  of 
Congress  ;  and  credit  must  be  given  to  them  for  sub 
mitting  to  compromise  that  which  was  their  undoubted 
legal  right.  This  action  can  be  explained  only  by  the 
spirit  that  animated  President  Monroe  during  the 
negotiation  of  the  Spanish  treaty,  and  by  that  already 
noticed  as  prevailing  in  the  South  against  the  exten 
sion  of  slavery. 

The  effects  of  the  Missouri  Compromise  were :  1. 
The  revelation  that  a  balance  of  power  existed  be 
tween  the  sections,  and  that  upon  its  maintenance  by 
compromise  depended  the  preservation  of  the  Union. 
2.  That  henceforth  the  subject  of  slavery  was  not 
wholly  a  political  one,  but  that  moral  considerations 
had  become  infused  into  its  consideration,  and  that  the 
dangerous  conjunction  of  ethics  with  politics  had  been 
established.  3.  That  sectionalism  was  recognized  by 
the  establishment  of  a  geographical  line  across  which 
neither  party  was  to  step.1  4.  That  North  and  South 
acted  on  the  assumption  that  Congress  had  absolute 
power  over  the  territories. 

1  Jefferson  to  John  Holmes,  April  22,  1820.  Lalor,  Compro 
mises,  i,  551. 


226          CONSTITUTIONAL  LEGISLATION. 

This  compromise  possessed  the  weakness  inherent 
to  all  compromises,  namely,  that  it  was  founded  upon 
circumstances  which  were  changeable  ;  the  history  of 
the  United  States  thenceforth  was  the  history  of  the 
endeavors  of  a  divided  people  to  reconcile  their  com 
pact  with  constantly  changing  conditions.  If,  instead 
of  this  imaginary  line,  there  had  been  a  Chinese  wall 
which  would  have  restrained  effectually  the  flood  of 
immigration  within  the  territory  north  of  36°  30',  and 
had  the  territory  south  of  this  degree  of  latitude  not 
been  extended  by  conquest,  purchase,  or  treaty,  the 
Missouri  Compromise  might  have  existed  forever :  but 
it  was  founded  upon  conditions  which  changed  with 
every  movement  of  the  rapidly  moving  West,  and  it 
had  to  be  readapted  to  the  acquisition  of  Texas,  to  the 
acquisition  of  California,  to  the  admission  of  Nebraska 
and  Kansas,  —  in  a  word,  it  had  to  conform  to  the 
expansion  of  the  South  in  territory  and  to  the  expan 
sion  of  the  North  in  population.  No  hard-and-fast 
bargain  was  equal  to  this  task.  It  came  to  an  end,  or 
rather,  the  compromise  of  1850,  which,  virtually,  was 
the  Missouri  Compromise  over  again,  came  to  an  end, 
amid  scenes  of  discord  and  bloodshed. 

But  the  great  importance  of  the  Missouri  Compro 
mise  and  its  successors  lies  in  the  fact  that  the  com 
promise  that  was  so  thoroughly  an  ingredient  of  the 
Constitution  of  the  United  States  was  recognized  de- 

O 

hors  the  Constitution  as  the  one  only  force  which 
could  bind  together  two  differing  peoples  and  two 
incongruous  forms  of  anglican  civilization.  A  mere 
Constitution  had  proved  to  be  insufficient  for  this  end 
as  early  as  1820 :  from  this  year  to  1861,  the  bond 
of  union  was  the  principle  of  compromise  which  was 


THE   COMPROMISES   OF  LEGISLATION.     227 

made  a  prerequisite  to  the  admission  of  Missouri 
into  the  Union  ;  and  so  clearly  was  this  recognized  as 
essential  to  the  stability  of  the  Union  that,  as  late  as 
1860,  when  it  was  perceived  that  the  states  could  no 
longer  hold  together  on  the  old  basis,  the  sole^attempt 
to  preserve  the  Union  was  the  endeavor  to  fan  the 
embers  of  the  Missouri  Compromise  into  new  flame 
by  the  futile  Crittenden  Compromise.  The  only  hope 
of  "  saving  the  Union  "  was  by  a  recurrence  to  com 
promise,  and  with  its  failure  expired  the  last  appear 
ance  in  our  history  of  compromise  as  a  groundwork 
of  Union. 

From  1820  to  1861,  the  Union  rested  not  upon  the 
compromises  of  the  Constitution,  but  upon  those  of 
legislation,  and  these  legislative  compromises  were 
mere  bargains  between  the  two  great  sections  of  the 
United  States. 


CHAPTER  XI. 

COERCION,    OR   NON-COERCION? 

Condition  of  aff airs  at  the  inauguration  of  Abraham  Lincoln  —  Coer 
cion,  or  non-coercion  ?  —  Inaugural  Address  and  answer  to  the 
Virginia  Commissioners  —  Coercion  —  The  President's  Message  of 
July,  1861  —  "  No  state,  upon  its  own  mere  motion,  can  lawfully 
get  out  of  the  Union." 

WHEN  Abraham  Lincoln  took  the  presidential  oath 
of  office,  the  whole  country  was  in  the  direst  agita 
tion.  The  secession  of  South  Carolina  had  been  fol 
lowed  by  that  of  six  other  states,  and  the  national 
flag  was  flying  over  four  forts  only  on  the  coast  that 
stretched  from  Cape  Henlopen  to  the  Rio  Grande. 
The  eyes  of  the  world  were  at  that  moment  concen 
trated  upon  one  of  these  forts,  Sumter,  for  it  had  been 
regularly  invested  by  secession  forces,  and  with  each 
recurring  day  might  come  the  news  that  its  flag  had 
been  lowered  in  subjection.  Allegiance  to  the  United 
States  had  been  cast  off,  and  the  federal  government 
was  powerless  to  execute  a  single  one  of  its  orders l 
throughout  the  vast  region  known  as  the  Cotton  or 
Gulf  States ;  Virginia,  North  Carolina,  Tennessee, 
and  Arkansas  were  arming,  ostensibly  against  all 
comers,  but  it  was  feared  that  they  had  the  intention 
of  joining  the  seceded  states.  In  the  border  states 

1  The  United  States'  postal  service  was  maintained  in  the  seceded 
states  until  June  1,  1861 ;  but  this  was  suffered  by  the  Confederate 
government  for  motives  of  convenience  and  self-interest  only. 


COERCION   UNCONSTITUTIONAL.         229 

of  Maryland,  Kentucky,  and  Missouri,  the  population 
was.  divided  against  itself,  and  the  most  that  the  gov 
ernment  could  hope  for  was  to  hold  its  own  within 
these  disputed  limits.  The  Congress  that  had  just 
terminated  1  had  done  nothing  to  effect  harmony,  so 
torn  and  rent  had  it  been  by  the  conflicting  parties 
and  factions ;  it  had  been  inefficacious  for  conciliation 
or  cure,  and  the  great  Peace  Convention,  called  at  the 
instance  of  Virginia,  had  proved  to  be  of  so  little  avail 
that  its  disheartened  members  had  separated,  leaving 
their  beneficent  object  farther  from  attainment  than 
ever.  Among  the  last  things  which  the  Convention 
had  done  was  this  significant  act  —  it  had  permitted 
a  resolution  to  be  placed  upon  its  journal  expressing 
the  "  conviction  that  the  Union,  being  formed  by  the 
assent  of  the  people  of  the  respective  states,  and  being 
compatible  only  with  freedom  and  the  republican  in 
stitutions  guaranteed  to  each,  cannot  and  ought  not 
to  be  maintained  by  force."  The  Convention,  there 
fore,  deprecated  "  any  effort  by  the  federal  govern 
ment  to  coerce  in  any  form  the  said  states  to  reunion 
or  submission,  as  tending  to  irreparable  breach,  and 
leading  to  incalculable  ills,"  and  it  earnestly  invoked 
"  the  abstinence  from  all  counsels  or  measures  of  com 
pulsion  towards  them."  2 

1  The  36th  Congress. 

2  Ann.  Cycl.,  1861,  568.     The  power  to  coerce  a  state  is  not  among 
the  powers  granted  in  the  Constitution.     On  the  31st  of  May,  1787, 
a  clause  "  authorizing  an  exertion  of  the  force  of  the  whole  against 
a  delinquent  state  "  was  considered.     Madison  vigorously  opposed  it, 
and  made  use  of  this  language :   "  The  use  of  force  against  a  state 
would  look  more  like  a  declaration  of  war  than  an  infliction  of  pun 
ishment  ;   and  would  probably  be  considered  by  the  party  attacked  as 
a  dissolution  of  all  previous  compacts  by  which  it  might  be  bound." 
Whereupon  the  Convention  dropped  the  subject  and  never  recurred  to 


230  COERCION,  OR  NON-COERCION? 

This  deprecation  of  coercion  was  in  accordance  with 
the  doctrine  of  "strict  construction  of  the  Constitu 
tion,"  and  also  with  an  elaborate  opinion  by  Jeremiah 
S.  Black,  late  Attorney-General,  submitted  to  Presi 
dent  Buchanan,  to  the  effect  that  there  was  no  con 
stitutional  power  in  the  federal  government  to  coerce 
a  refractory  state.  This  opinion  of  the  Attorney-Gen 
eral,  and  the  consequent  line  of  conduct  pursued  by 
President  Buchanan,  had  brought  down  upon  these 
officials  unmeasured  obloquy  at  the  hands  of  the  domi 
nant  party  in  the  North :  but  the  opinion  was  a  logical 
conclusion  of  the  principle  of  construction  maintained 
by  the  Democratic  party  by  whom  the  President  had 
been  chosen.  In  fact,  this  legal  opinion  laid  bare  to 
the  people  the  real,  underlying  cause  of  the  existing 
trouble  —  the  different  and  conflicting  principles  of 
constitutional  construction  upheld  by  the  North  and 
by  the  South,  and  the  obloquy  heaped  upon  the  un 
lucky  officials  was  merely  heated  denunciation  of  the 
doctrine  adhered  to  by  the  administration. 

Nevertheless,  the  incoming  President,  Lincoln,  was 
confronted  at  the  outset  by  the  fact  that  this  doctrine 
had  been  acted  upon  by  the  executive  branch  of  the 
government  down  to  the  very  moment  in  which  he  had 
taken  the  oath  of  office  ;  that  the  legislative  branch 
had  not  denied  the  principle  in  word  or  deed  ;  that  the 
judicial  branch  had  not  yet  met  the  question  of  coer 
cion  decisively,  and  that,  scarcely  three  weeks  before,  a 
national  convention,  composed  in  greater  part  of  north- 
it.  Madison  afterward  said  of  it :  "  Any  government  for  the  United 
States  formed  on  the  supposed  practicability  of  using1  force  against 
the  unconstitutional  proceedings  of  the  states,  "would  prove  as  vision 
ary  and  fallacious  as  the  government  of  Congress,"  referring  to  the 
Congress  of  the  Confederation  of  1781. 


ELEMENTS   OF  REPUBLICAN  PARTY.     231 

ern  states,  had  declared  that  the  Union  ought  not  to  be 
maintained  by  force,  and  had  deprecated  any  effort  by 
the  federal  government  to  coerce  the  states  to  reunion 
or  submission.  Adherence  to  the  doctrine  of  strict 
construction  would  leave  the  seceded  states  undis 
turbed  ;  would  permit  the  unobstructed  secession  of 
states  that  might  desire  to  secede  thereafter,  and  would 
relegate  reunion  to  an  uncertain  but  peaceful  future  : 
but  a  construction  of  the  Constitution  which  would 
evolve  power  in  the  federal  government  to  compel  and 
maintain  union  by  force  would  unquestionably  precipi 
tate  civil  war.  It  is  not  surprising  that,  with  such  a 
choice  before  it,  the  whole  country  was  plunged  into 
the  direst  perplexity :  peace  or  war,  Union  or  Dis 
union,  were  the  issues  of  a  game  upon  which  its  for 
tune  was  staked. 

If  the  President  were  to  reflect  the  doctrines  of 
those  who  had  chosen  him,  there  could  be  little  doubt 
of  his  future  course ;  for  the  victorious  Republicans 
comprised  those  who  were  even  then  shouting  f or  "  a 
strong  government,"  those  who  doubted  that  the  Con 
stitution  which  had  been  suitable  enough  for  a  few 
millions  of  people  and  for  times  of  peace  would  be  so 
for  a  great  population  and  for  times  of  civil  conflict, 
and  those  who,  like  the  Abolitionists,  looked  upon  the 
Constitution  as  a  compact  with  hell,  and  welcomed 
the  secession  of  the  states  with  the  joyful  exclama 
tion  of  "  All  hail,  disunion  !  "  1  This  new  party  em 
braced  the  mass  of  liberal  constructionists  in  the 
Union,  and  such  had  become  the  antipathy  between 
the  northern  and  southern  sections  that  the  trium 
phant  Republicans  had  taken  no  greater  pains  to  con- 
1  Wendell  Phillips,  Boston,  January  20,  1861. 


232  COERCION,  OR  NON-COERCION? 

ceal  their  own  sectional  feeling  than  had  the  South 
erners  theirs,  but  had  openly  rejoiced  in  the  fact  that 
"  a  Northern  President,"  "  a  President  that  really 
represented  the  North,"  would  take  the  helm  on  the 
ensuing  fourth  of  March.  It  was  to  be  anticipated, 
then,  that,  reflecting  the  notions  of  constitutional  con 
struction  entertained  by  his  party,  the  incoming  Pres 
ident  would  rely  upon  "  the  war  powers,"  and  exert 
the  coercive  force  of  one  body  of  the  states  against 
the  other. 

This  anticipation  was  encouraged  by  the  personal 
antecedents  of  Abraham  Lincoln.  He  had  never 
taken  any  other  view  of  the  federal  Constitution,  than 
that  its  supremacy  was  not  restricted  to  the  limitations 
set  upon  it  by  itself,  but  that  it  was  "  the  supreme  law 
of  the  land  "  to  the  exclusion  of  everything  that  it  did 
not  grant,  and  that  all  that  was  necessary  to  establish 
its  "  implied  powers  "  was  to  enunciate  them  in  laws 
of  the  United  States  made  "  in  pursuance  thereof."  1 

Only  three  weeks  before,  the  very  day  indeed  upon 
which  he  had  left  his  home  and  had  begun  his  journey 
to  Washington,2  he  had  used  this  language  in  reply 
to  an  address  of  welcome  at  Indianapolis  :  "  By  the 
way,  in  what  consists  the  special  sacredness  of  a  state  ? 
I  speak  not  of  the  position  assigned  to  a  state  in  the 
Union  by  the  Constitution  ;  for  that  is  the  bond  we 
all  recognize.  That  position,  however,  a  state  cannot 
carry  out  of  the  Union  with  it.  I  speak  of  that 
assumed  primary  right  of  a  state  to  rule  all  which  is 
less  than  itself,  and  to  ruin  all  which  is  larger  than 
itself.  If  a  state  and  a  county,  in  a  given  case, 

1  Constitution  of  the  United  States,  Article  VI. 

2  February  11,  1861. 


INDIFFERENCE   TO   THE  STATES.        233 

should  be  equal  in  extent  of  territory  and  equal  in 
number  of  inhabitants,  in  what,  as  a  matter  of  prin 
ciple,  is  the  state  better  than  the  county  ?  "  1  Every 
word  which  dropped  from  the  lips  of  the  President 
elect  fell  upon  anxious  ears,  and  there  were  not  want 
ing  conservative  men  in  his  own  party  to  note  that, 
in  his  consideration  of  a  sovereign  state,  he  had  done 
that  which  Davis  and  Toombs  and  Wigfall  were  then 
doing,  —  not  regarding  it  "in  the  position  assigned 
to  it  in  the  Union  by  the  Constitution,"  but  in  a  posi 
tion  outside  of  the  Union  and  of  the  Constitution  ; 
and  that  the  first  notice  which  he  had  taken  of  the 
states  was  to  make  light  of  them.  The  expression, 
"  By  the  way,  in  what  consists  the  special  sacredness 
of  a  state  ?  "  grated  on  the  feelings  of  these  men,  and 
struck  despair  into  the  hearts  of  those  in  whom  rever 
ence  for  the  Constitution  was  ingrained,  and  who  re 
garded  the,  states  as  the  sources  of  the  federal  system, 
and  as  the  sole  defence  against  the  encroachments  or 
assaults  of  the  general  government.  The  strict-con- 
structionists  forthwith  charged  the  President-elect  with 
ignorance  or  wilfulness  in  putting  a  state  and  a  county 
(a  sovereign  and  a  non-sovereign)  upon  an  equality, 
and  also  with  indulging  in  a  flippant  and  mocking 
tone,  irreconcilable  with  reverence  for  the  Constitution 
or  with  the  gravity  of  the  situation,  and  which  boded 
ill  to  the  integrity  of  the  sovereignties  which  com 
posed  our  federal  system.  Thus,  in  wending  his  way 
to  Washington  to  become  President  of  the  United 
States,  Abraham  Lincoln  left  behind  him  the  appre- 

1  That  hostile  criticism  was  not  blind  to  the  effectiveness  of  con 
stitutional  principles  betrayed  by  this  inquiry  is  shown  by  the  fact 
that  Jefferson  Davis,  in  his  Message  of  April  29,  1861,  refers  to  this 
passage  as  exhibiting  "  a  lamentable  and  fundamental  error." 


234          COERCION,    OR  NON-COERCION? 

tension  that,  in  a  conflict  between  states,  he,  the 
head  of  the  federal  government,  would  have  little 
knowledge  of  the  nature  of  the  sovereignties  with 
which  he  would  have  to  deal,  and  that  the  states 
themselves,  North  as  well  as  South,  would  meet  with 
no  more  regard  for  him  than  if  they  were  counties. 

There  were,  however,  great  obstacles  to  the  imme 
diate  adoption  of  coercion.  Men  and  money  would 
have  to  be  raised.  Men,  it  is  true,  were  in  plenty, 
but  the  question  of  money  was  a  difficult  one  in  face 
of  the  low  credit  of  the  government  and  of  the  men 
acing  aspect  of  affairs.1  The  navy  was  scattered  over 
the  face  of  the  globe ; 2  the  army  had  been  weakened 
by  the  resignation  of  southern  officers,  and  even  by 
the  capture  of  southern  garrisons,  and  the  loss  of  the 
southern  posts  would  force  the  government  to  take  its 
initiative  from  points  exterior  to  the  territory  of  in 
tended  operations.  The  northern  arsenals  had  been 
partially  depleted,  and  the  southern  magazines  with 
their  contents  wefe  in  the  hands  of  secessionists,3 
while  the  capital  itself,  situated  in  the  midst  of  a  dis 
affected  population  and  on  the  verge  of  the  theatre  of 
war,  was  manifestly  insecure.4  The  great  European 
powers  were  certain  to  withhold  their  sympathy  from 
the  North,  and  were  as  certain  to  extend  it  to  the 
South;  already  their  public  prints  were  predicting 

1  No  responsible  bidder  had  offered  to  take  any  considerable  amount 
of  the  Treasury  notes  authorized  by  the  act  of  December  17,  I860,  at 
par,  at  a  lower  rate  of  interest  than  12  per  cent.     Message  of  Presi 
dent  Buchanan,  January  8,  1861. 

2  Dawes'  Report,  February  21,  1861 :   but  see  Branch's  Minority 
Report. 

3  Report  of  the  Secretary  of  War,  January  15,  1861 ;  also  that 
of  February  18,  1861. 

4  Report  of  the  Secretary  of  War,  February  18,  1861. 


ANXIETY  OF  THE   COERCIONISTS.        235 

the  downfall  of  the  federal  government,  and  were  ex 
ultantly  pointing  to  the  seceded  states  as  proof  of  an 
accomplished  dissolution  of  the  Union.  Moreover, 
while  the  northern  wing  of  the  Democratic  party  was 
openly  opposed  to  aggression,  and  while  a  people  who 
knew  nothing  but  peace  and  who  were  averse  to  war 
were  still  deluding  themselves  with  hopes  of  compro 
mise  and  harmony,  it  was  extremely  doubtful  whether 
a  policy  of  coercion  would  be  sustained.  Could  the 
country  be  depended  upon  for  a  long,  a  costly,  and  a 
bloody  conflict  ?  The  rupture  of  the  Union  was  hav 
ing  its  effect  even  now  in  the  direction  of  submission, 
and  as  cries  of  discord  and  hatred  rose  in  every  quar 
ter,  and  pillar  after  pillar  of  the  state  was  falling, 
men  who  a  week  ago  had  been  calling  for  coercion 
were  faltering  or  were  dumb.  The  influences  that 
were  leading  many  worthy  but  timorous  men  to  ask 
whether  the  Union  were  worth  the  fearful  cost,  now 
foreseen,  to  preserve  it,  and  to  doubt  if  it  was  longer 
within  the  power  of  man  to  save  it,  might  affect  the 
President  in  the  same  way,  and,  should  he  take 
counsel  of  his  fears,  he  would  find  ample  support  in  a 
resolution  adopted  by  the  national  Convention  which 
had  nominated  him  to  the  Presidency,  and  which  de 
nounced  "  the  lawless  invasion  by  armed  force  on  the 
soil  of  any  state  or  territory,  no  matter  under  what 
pretext,  as  among  the  gravest  of  crimes."  Congress 
would  not  be  in  session  at  his  inauguration  ;  yet,  with 
out  its  authority,  any  invasion  of  a  state,  however 
trivial,  would  be  lawless,  and  thus  he  would  begin  his 
term  of  office  by  acts  without  constitutional  warrant, 
and  in  the  teeth  of  his  party's  denunciation. 

The  dreadful  scene  of  the  dissolution  of  the  Union, 


236  COERCION,    OR  NON-COERCION? 

pictured  by  Webster,  was  then  before  Mr.  Lincoln's 
eyes,  as  it  was  before  those  of  his  halting  countrymen, 
and  to  take  up  coercion  would  be  to  augment  the  exist 
ing  horror;  the  Border  States  were  already  at  his 
elbow,  and,  overcome  by  present  evil  and  shrinking 
from  an  unknown  future,  he  might  lend  an  ear  to  the 
whisperings,  and,  content  with  that  which  was  left, 
relegate  to  time  and  circumstances  the  reunion  of  all 
the  states.  It  was  not  without  reason,  therefore,  that 
those  who  favored  armed  compulsion  should  be  as 
anxious  as  the  conservative  elements  of  the  North 
were,  and  like  them  await  the  Inaugural  Address  with 
apprehension. 

The  Inaugural  Address  was  duly  delivered,  but  the 
country  was  little  wiser  than  before.  North  and 
South  interpreted  it  according  to  their  will ;  this  sec 
tion  declared  that  it  breathed  forth  threatenings  and 
slaughter ;  that  asserted  that  it  held  out  the  olive 
branch.  A  month  later,  in  answer  to  the  Virginia 
Commissioners,  who  had  been  appointed  by  the  state 
Convention  to  "  respectfully  ask  him  to  communicate 
to  this  Convention  what  course  he  intended  to  pursue," 
the  President  became  his  own  expounder.  He  re 
peated,  that  he  would  continue  to  hold  "  the  property 
and  places  belonging  to  the  government,  and  to  collect 
the  duties  and  imposts ;  but  beyond  what  was  neces 
sary  for  these  objects  there  would  be  no  invasion,  no 
using  of  force  against  or  among  the  people  anywhere ;" 
but  if  an  unprovoked  assault  had  been  made  upon 
Fort  Sumter,  he  should  hold  himself  at  liberty  to  re 
possess  it,  and  that,  in  any  event,  he  should  repel  force 
by  force.1  He  should  not  attempt  to  collect  the  du- 

1  The  position  here  adopted  by  President  Lincoln  is  no  more  nor 


COERCION  ADOPTED.  237 

ties  and  imposts  by  any  armed  invasion  of  any  part 
of  the  country  ;  not  meaning  by  this,  however,  that  he 
might  not  land  a  force  deemed  necessary  to  relieve  a 
fort  upon  the  border  of  the  country.1  This  answer 
was  given  to  the  Commissioners  on  the  fifteenth  of 
April,  simultaneous  with  the  President's  call  for  mili 
tia  to  suppress  combinations  and  to  cause  the  laws  to 
be  duly  executed  ;  to  which  call  Letcher,  the  Gov 
ernor  of  Virginia,  replied  in  these  terms  :  "  I  have  only 
to  say,  that  the  militia  of  Virginia  will  not  be  fur 
nished  to  the  powers  at  Washington  for  any  such  use 
or  purpose  as  they  have  in  view.  Your  object  is  to 
subjugate  the  southern  states,  and  a  requisition  made 
upon  me  for  such  an  object,  in  my  judgment  not 
within  the  purview  of  the  Constitution  or  the  act  of 
1795,  will  not  be  complied  with.  You  have  chosen 
to  inaugurate  civil  war,  and  having  done  so,  we  will 
meet  it  in  a  spirit  as  determined  as  the  administration 
has  exhibited  towards  the  South." 

Fort  Sumter  had  surrendered  on  the  thirteenth,  it 
was  evacuated  on  the  fourteenth,  and  that  night  the 
President  sent  to  the  Secretary  of  State  a  proclama 
tion  convening  Congress  on  the  fourth  of  July  and 
calling  for  troops,  which  was  proclaimed  the  next  day. 
On  the  nineteenth,  another  proclamation  declared  the 
ports  of  the  Gulf  States  and  South  Carolina  to  be 
blockaded.  On  the  twentieth,  the  federal  government 
seized  the  telegraphic  despatches  of  the  past  year  in 
the  northern  states  ;  on  the  twenty-seventh,  the  Presi 
dent  extended  the  blockade  to  the  ports  of  North  Car- 
less  than  that  taken  by  his  predecessor,  President  Buchanan.  See 
Message  at  the  opening1  of  the  Second  session  of  the  36th.  Congress, 
December,  1860,  and  also  that  of  January  8,  1861. 
1  See  also  Message  of  July  4,  1861. 


238  COERCION,  OR  NON-COERCION? 

olina  and  Virginia,  and  the  government  at  once  set  to 
work  to  render  the  blockade  effectual.  On  the  third 
of  May,  the  President  issued  another  proclamation 
calling  into  service  forty-two  thousand  men  for  three 
years,  a  term,  the  duration  of  which,  in  contrast  with 
the  first  call,  indicates  how  rapid  the  expansion  of 
ideas  in  reference  to  the  magnitude  of  the  work  in 
hand  had  been  since  the  fourteenth  day  of  April.  In 
this  proclamation,  too,  the  President  had,  of  his  own 
motion,  increased  the  regular  army  by  ten  regiments, 
or  more  than  twenty-two  thousand  men,  and  had  in 
creased  the  navy  by  eighteen  thousand  seamen.  On 
the  sixteenth  of  May,  he  issued  a  further  proclamation 
suspending  the  writ  of  habeas  corpus  in  the  localities 
still  occupied  by  federal  troops  in  Florida,  in  case  the 
commander  of  the  forces  found  it  necessary,  and  au 
thorizing  him  to  remove  all  dangerous  or  suspected 
persons  from  the  vicinity  of  the  United  States  forts. 
On  the  twenty-fifth,  an  armed  force  aroused  John 
Merryman,  a  citizen  of  Maryland,  from  his  bed  about 
two  o'clock  in  the  morning  and  placed  him  in  custody 
in  Fort  McHenry.  Merryman,  the  same  day,  pre 
sented  his  petition  to  the  Chief  Justice  of  the  United 
States  for  a  writ  of  habeas  corpus,  which,  on  the 
twenty-sixth,  was  served  upon  General  George  Cad- 
walader,  whose  answer  to  the  writ  contained,  among 
other  things,  this  astonishing  information ;  "  He  has 
further  to  inform  you,  that  he  is  duly  authorized  by  the 
President  of  the  United  States  in  such  cases  to  sus 
pend  the  writ  of  habeas  corpus  for  the  public  safety." 
The  General  declined  to  produce  Merryman  until 
instructions  had  been  received  from  the  President, 
whereupon  the  Chief  Justice  ordered  an  attachment 


EXTRA-CONSTITUTIONAL   POWERS.       239 

to  be  issued  against  Cadwalader,  which  the  official  in 
charge  was  unable  to  serve  because  he  "  was  not  per 
mitted  to  enter  the  gate."  Other  instances  of  the 
kind  occurred  in  different  parts  of  the  country,  and 
by  October  nineteenth,  one  hundred  and  seventy-five 
prisoners  of  state  had  been  confined  in  Fort  La  Fay- 
ette.  All  of  these  arrests  had  been  arbitrary.  On 
the  fifteenth  day  of  April,  the  President  had  called 
Congress  to  meet  in  extra  session,  on  the  fourth  of 
July.1  Long  before  that  time  all  men  throughout  the 
land  knew  that  civil  war  was  upon  them. 

In  every  one  of  these  proclamations  and  in  the  pro 
cedure  under  them,  except  that  of  convening  Congress 
in  extra  session,  the  President  acted  without  consti 
tutional  power.  He  raised  armies  and  provided  for 
calling  forth  the  militia  to  execute  the  laws  of  the 
Union,  suppress  insurrection,  and  repel  invasion,  — 
powers  which  by  the  Constitution  belong  solely  to 
Congress.2  He  increased  the  navy  of  his  own  motion, 
and  set  on  foot  and  extended  a  blockade,  which  was 
an  act  of  war  unauthorized  by  Congress  ;  and  with 
nothing  to  establish  his  right  to  proclaim  martial  law 
and  to  suspend  the  privilege  of  the  writ  of  habeas  cor 
pus,  except  an  opinion  of  his  Attorney-General,  he 
authorized  his  officers  to  do  so,  and  arbitrary  arrests 
followed  in  states  not  in  rebellion.  This  assumption 
of  powers  not  conferred  upon  the  President  brought 
upon  him  much  animadversion,  the  severity  of  which 
was  by  no  means  mitigated  by  the  apology  of  "  neces 
sity  "  everywhere  advanced  by  those  who  sustained 
him.  His  course  was  compared  unfavorably  with 

1  The  first  session  of  the  37th  Congress. 

2  Article  I.,  sect.  8. 


240  COERCION,  OR  NON-COERCION? 

that  of  the  President  of  the  Confederate  States,  who 
took  care  to  act  strictly  within  his  Constitution,  and 
whereas  Jefferson  Davis  called  the  Confederate  Con 
gress  together  within  a  fortnight,  President  Lincoln 
allowed  an  interim  of  eleven  weeks  to  elapse  before 
Congress  assembled  on  the  fourth  of  July.  This  seem 
ing  lack  of  energy  might  have  been  a  sagacious  mode 
of  acquiring  the  advantage  which  a  knowledge  of 
the  action  of  the  Confederate  Congress  would  by  that 
time  give  our  own  :  but  his  censors  insinuated  that 
the  delay  was  occasioned  rather  by  the  opportunity  it 
would  afford  the  President  to  make  precedents  for  the 
exercise  of  "  the  latent  powers,"  and  to  usurp  the 
powers  of  the  absent  Congress.  That  President  Lin 
coln  was  fully  aware  of  the  unconstitutionally  of  his 
proceedings,  and  that  he  desired  his  party  to  share  the 
responsibility  incurred  by  him,  is  clear  from  the  act  of 
August  sixth,  which  was  the  first  in  the  series  of  con 
donation  acts.  The  condonation  by  one  branch  of 
government  of  the  faults  of  another  branch  was  with 
out  validity,  and,  indeed,  was  itself  merely  another 
unconstitutional  act,  committed,  in  this  instance,  by 
two  branches  of  the  government  instead  of  by  one 
alone  :  nor  is  it  to  be  supposed  that  President  or  Con 
gressmen  regarded  this  innovation  as  valid,  or  as  any 
thing  else  than  what  it  was,  —  a  compliance  with  the 
demand  of  the  President  that  his  party  should  place 
itself  where  it  could  not  repudiate  his  unconstitutional 
acts. 

When  Congress  met  together,  the  President's  Mes 
sage  was  received  with  eagerness,  but,  like  the  Inau 
gural  Address,  it  was  not  altogether  satisfactory. 
After  entering  into  the  details  of  the  reduction  of 


IGNORING   OF  STATE  SOVEREIGNTY.    241 

Fort  Sumter,  and  after  placing  upon  the  Confeder 
ates  the  burden  of  beginning  hostilities  to  which  the 
United  States  were  compelled  to  respond,  he  exposed 
the  fallaciousness  of  the  "  armed  neutrality  "  of  the 
Border  States,  in  a  few  pithy  sentences.  He  like 
wise  exhibited  with  great  clearness  the  sophism  upon 
which  the  South  had  seceded  from  the  Union.  "  The 
sophism  itself,"  he  said,  "is,  that  any  state  of  the 
Union  may,  consistently  with  the  national  Constitu 
tion,  and  therefore  lawfully  and  peacefully,  withdraw 
from  the  Union  without  the  consent  of  the  Union  or 
of  any  other  state"  Had  he  contented  himself  with 
this  statement,  which  contains  the  condition  of  with 
drawal  from  the  Union,  then  admitted  to  be  essential 
even  by  rigid  constructionists,  the  consent  of  all  or  at 
least  of  a  majority  of  the  states,  —  the  President 
would  have  done  well.  He  went  on  to  say,  however, 
that  "  this  sophism  derived  much  of  its  currency  from 
the  assumption  that  there  is  some  omnipotent  and 
sacred  supremacy  pertaining  to  a  state,  —  to  each 
state  of  our  Federal  Union,"  and  to  assert,  by  a  his 
torical  perversion,  that  no  one  of  the  states  had  ever 
been  a  state  "  out  of  the  Union."  The  remarks  that 
followed  were  an  elaboration  of  the  text  which  he  had 
set  forth  in  his  address  at  Indianapolis,  and  their  tone 
was  adverse  in  the  extreme  to  the  integrity  of  states. 
He  scouted  the  notion  that  a  state  had  ever  existed  out 
side  of  the  Union,  declaring  that  the  states  have  their 
status  in  the  Union,  and  that  they  have  no  other  legal 
status,  and  that  no  one,  except  Texas,  ever  had  been 
a  sovereignty,  assertions  susceptible  of  ominous  inter 
pretation  to  a  state  which  had  "  gone  out,"  in  case  the 
fortune  of  war  should  bring  it  to  the  day  when  it  was 


242  COERCION,  OR  NON-COERCION? 

to  be  brought  back.  This  argumentation  has  proved 
unfortunate  in  lending  the  name  of  Abraham  Lincoln 
to  a  sophism  quite  as  mischievous  as  the  one  he  had 
been  denouncing.  Its  importance,  at  the  time  of 
writing,  was  diminished  by  the  assumption  that  the 
President  felt  called  upon  to  make  a  rejoinder  to,  the 
strictures  of  Jefferson  Davis  upon  his  Inaugural  Ad 
dress  and  Indianapolis  speech,  and  that,  in  doing  so, 
he  had  unconsciously  overstepped  the  limits  prescribed 
by  historical  facts  and  right  reason.  Equally  weak 
was  the  argumentative  exculpation  of  himself  for 
authorizing  the  suspension  of  the  privilege  of  the 
writ  of  habeas  corpus,  "  by  the  commanding  General 
in  proper  cases  ;  "  an  exculpation  which  terminated  in 
the  intimation  that  he  was  aware  that  the  Constitution 
did  not  specify  who  was  to  exercise  the  power  of  sus 
pension,  and  that  it  was  not  to  "  be  believed  that  the 
framers  of  this  instrument  intended  that  in  every  case 
the  danger  should  run  its  course  until  Congress  could 
be  called  together."  In  relation  to  other  uncon 
stitutional  proceedings,  the  President  admitted  that 
"  these  measures,  whether  strictly  legal  or  not,  were 
ventured  upon  under  what  appeared  to  be  a  popular 
demand  and  a  public,  necessity ;  trusting  then,  as 
now,  that  Congress  would  readily  ratify  them,"  —  a 
trust  which  seems  confidently  placed,  but  which  it 
took  Congress  thirty-three  days  before  it  could  bring 
itself  to  sustain. 

The  following  paragraph  in  reference  to  reconstruc 
tion  occurs  in  this  message :  "  Lest  there  be  some 
uneasiness  in  the  minds  of  candid  men  as  to  what  is 
to  be  the  course  of  the  government  towards  the 
Southern  States  after  the  rebellion  shall  have  been 


ONCE  A   STATE,  ALWAYS  A   STATE.      243 

suppressed,  the  Executive  deems  it  proper  to  say,  it 
will  be  his  purpose  then,  as  ever,  to  be  guided  by  the 
Constitution  and  the  laws ;  and  that  he  probably  will 
have  no  different  understanding  of  the  powers  and 
duties  of  the  federal  government  relatively  to  the 
rights  of  the  states  and  the  people,  under  the  Consti 
tution,  than  that  expressed  in  his  Inaugural  Address." 

But  the  only  expression  in  the  Inaugural  Address 
bearing  upon  the  subject  is  this :  "  It  follows  from 
these  views  that  no  state,  upon  its  own  mere  motion, 
can  lawfully  get  out  of  the  Union  ;  that  resolves  and 
ordinances  to  that  effect  are  legally  void ;  and  that 
acts  of  violence,  within  any  state  or  states,  against  the 
authority  of  the  United  States  are  insurrectionary  or 
revolutionary,  according  to  circumstances.  I  there 
fore  consider  that,  in  view  of  the  Constitution  and  the 
laws,  the  Union  is  unbroken." 

This  makes  manifest  the  President's  notion  of 
what  the  status  of  a  seceded  state  was  —  it  was  still 
in  the  Union ;  but  what  the  course  of  the  govern 
ment  towards  this  state  would  be  after  the  rebellion 
should  be  repressed,  is  not  disclosed.  The  Inaugural 
Address  has  nothing  to  say  about  it,  and  the  only 
notable  thing  in  this  clause  from  the  message  is  the 
assumption  that  the  rebellion  would  be  suppressed. 
When  we  recall  what  the  condition  of  the  country 
was  when  this  line  was  penned,  we  cannot  but  admire 
the  steadfast  trust  that  the  day  would  surely  come 
when  the  Union  would  be  restored. 

It  may  be  well  to  anticipate  events  by  saying  that 
the  President  maintained  to  the  close  of  his  life  the 
doctrine  he  announced  on  the  day  of  his  inauguration, 


244  COERCION,  OR  NON-COERCION? 

and  which  he  reiterated  in  this  message,  —  the  doc 
trine  that  "  no  state,  upon  its  own  mere  motion,  can 
lawfully  get  out  of  the  Union."  It  was  upon  this 
principle  that  he  came  at  last  into  positive  opposition 
with  the  groups  of  extremists  which  were  led  by 
Wade  and  Sumner  in  the  Senate  and  by  Stevens  and 
Henry  Winter  Davis  in  the  House ;  a  principle  which 
may  be  said  to  have  expired  with  him,  for  it  was  over 
come  and  thrust  aside  when  "  the  Congressional  pol 
icy  "  overcame  and  thrust  aside  his  successor. 


CHAPTER  XII. 

DEVELOPMENT     OF     PRINCIPLES     OF     CONGRESSIONAL 
ACTION   TOWARDS   THE    SOUTH. 

The  Crittenden  Resolution  of  July  22,  1861  —  Debate  in  the  Senate 
upon  the  Resolution — Sumner's  Resolutions — Stevens'  vae  victis 
policy  —  Hale  on  arbitrary  arrests  —  Claim  of  Congress  to  absolute 
power  in  reconstruction. 

IN  the  mean  time  a  notion  of  reconstruction  devel 
oped  in  Congress  which  was  destined  to  become  antag 
onistic  to  that  of  the  President  and  in  the  end  to  effect 
its  subversion.  It  was  known  as  the  Congressional 
Plan  of  Reconstruction,  and  was  as  radical  and  revo 
lutionary  in  its  nature  as  was  the  Presidential  Plan. 
Nevertheless  it  will  be  seen,  from  the  vote  upon  a  res 
olution  of  Congress  now  to  be  considered,  that  at  the 
outset  the  notion  prevailing  in  Congress  upon  the  sub 
ject  was  precisely  that  which  had  been  entertained  by 
the  President,  and,  it  may  be  added,  by  the  country 
at  large,  at  the  time  of  the  President's  inauguration. 

On  the  day  after  the  battle  of  Bull  Run,1  Critten 
den,  of  Kentucky,  offered  in  the  House  of  Representa 
tives  the  following  resolution :  - 

"  That  the  present  deplorable  civil  war  has  been 
forced  upon  the  country  by  the  disunionists  of  the 
Southern  States,  now  in  arms  against  the  constitu 
tional  government,  and  in  arms  around  the  capital ; 

1  The  22d  of  July,  1861 :  Cong.  Globe,  222. 


246  CONGRESSIONAL    ACTION. 

that  in  this  national  emergency,  Congress,  banishing  all 
feelings  of  mere  passion  or  resentment,  will  recollect 
only  its  duty  to  the  whole  country ;  that  this  war  is 
not  waged  on  their  part  in  any  spirit  of  oppression,  or 
for  any  purpose  of  conquest  or  subjugation,  or  pur 
pose  of  overthrowing  or  interfering  with  the  rights  or 
established  institutions  of  those  States,  but  to  defend 
and  maintain  the  supremacy  of  the  Constitution,  and 
to  preserve  the  Union  with  all  the  dignity,  equality, 
and  rights  of  the  several  States  unimpaired ;  and  that 
as  soon  as  these  objects  are  accomplished  the  war 
ought  to  cease." 

This  resolution  was  adopted  by  a  majority  so  great 
that  only  two  members  recorded  dissenting  votes. 

Four  days  afterward,  the  same  resolution,  with  a 
few  unimportant  verbal  changes,  but  otherwise  in  pre 
cisely  the  same  language,  was  introduced  in  the  Sen 
ate  by  Andrew  Johnson,  of  Tennessee,  and  was  there 
adopted  also  by  a  great  majority,  only  five  Senators 
dissenting,  among  whom  were  Southerners  who  had 
not  yet  followed  their  colleagues  to  the  South,  but  who 
were  on  the  point  of  doing  so.  The  vote  in  the  Sen 
ate,  therefore,  is  as  significant  of  northern  opinion 
concerning  the  object  of  the  war  and  of  the  status  of 
the  rebellious  states,  as  was  that  of  the  House,  and  it 
may  be  well  to  review  the  remarks  of  different  Senators 
at  the  time,  inasmuch  as  they  reflect  exactly  the  no 
tions  of  the  North,  and  also  afford  a  point  wherefrom 
to  observe  how  rapidly  and  widely  these  same  men 
changed  their  opinions.  While  the  resolution  was 
directed  to  all  the  southern  people,  it  was  intended 
to  affect  the  Border  States  immediately  and  directly. 


PLANS    OF    THE    BORDER    STATES.          247 

There  can  be  no  question  that  the  political  leaders  of 
this  locality  entertained  the  hope  that  their  states 
might  perform  the  part  of  what  nowadays  are  called 
"  Buffer  States."  Their  hope  proved  futile,  but  they 
thought  that  by  judicious  neutrality  the  broad  belt  of 
states  separating  the  combatants  might  succeed  in  pre 
venting  the  continuance  of  war  and  might  even  restore 
the  Union  without  much  bloodshed ;  a  part  which 
would  be  humane  and  patriotic  in  the  highest  degree, 
and  which  would  eventuate  in  confiding  the  future 
maintenance  of  the  bond  of  Union  to  their  keeping ; 
certainly  it  would  have  resulted  in  placing  the  balance 
of  power  in  their  hands.  But  to  the  attainment  of  this 
object  it  was  essential  that  no  war  of  subjugation 
should  be  tolerated  for  a  moment,  that  the  right  of 
one  state  to  coerce  another  should  be  denied,  and  that 
this  odious  doctrine  be  repudiated  by  the  belligerents 
in  a  manner  so  positive  that  the  minds  of  the  people 
of  the  Border  States  should  be  at  rest  as  far  as  this 
point  was  concerned.  However  feasible  this  plan 
might  have  seemed  in  times  of  altercation  but  before 
blows  had  been  struck,  it  is  evident  that  it  was  no 
thing  short  of  Utopian  after  blood  had  been  shed.  It 
was  asking  the  North  and  the  South,  both,  to  submit 
their  differences  to  a  third  and  interested  power.1 
The  South  could  do  this  without  risk,  for  the  Border 
States  were  slave  states,  and  therefore  their  interests 
were  on  the  side  of  slavery ;  but  for  this  very  reason  the 
North  could  not  subject  itself  to  the  tutelage  of  these 
states  —  it  would  be  to  submit  their  cause  indirectly 

1  See  President  Lincoln's  message,  July  1,  1861.  "  I  see  no  reason 
why  I  should  give  up  my  opinions  to  those  of  any  gentlemen  from  the 
Border  States."  HENRY  WILSON. 


248  CONGRESSIONAL    ACTION. 

to  the  arbitrament  of  their  foes.  This  plan,  therefore, 
was  out  of  the  question,  and  the  uppermost  thought  of 
the  Border  States,  now  that  a  pitched  battle  had  been 
fought,  was  to  stave  off  the  horrors  of  war  from  their 
soil.  Nevertheless,  whatever  the  humane  or  the  ambi 
tious  designs  of  the  border  chiefs,  a  great  part  of  the 
border  population  sympathized  with  the  seceding 
states,  and  were  at  that  moment  enrolling  troops,  os 
tensibly  for  the  defence  of  their  territories,  but  really 
with  the  intention  of  joining  the  secessionists.  On 
the  other  hand,  the  same  dubious  plays  were  being 
acted  on  the  same  stage  in  the  interest  of  the  North. 
These  states  were  already  divided  households  ;  the 
northern  and  southern  sentiment  prevailed  in  contigu 
ous  counties.  The  belt  comprising  Maryland,  West 
ern  Virginia,  Kentucky,  and  Northern  Missouri  was 
virtually  in  the  military  possession  of  the  North,  and 
every  consideration  urged  this  government  to  main 
tain  therein  its  footing.  Accordingly,  Congress  de 
layed  not  a  moment  to  adopt  a  resolution  which  was  to 
carry  with  it  an  authoritative  enunciation  of  its  prin 
ciples  and  policy,  and  one  well  calculated  to  allay  the 
apprehension  of  the  border  population  and  to  attach 
the  wavering  to  their  side.  Such  a  resolution  admit 
ted  but  little  debate,  and  it  is  fair  to  presume  that 
the  different  Senators  meant  to  convey  to  the  world, 
as  well  as  to  the  Border  States,  the  sentiment  and 
doctrine  of  their  own  sections  of  the  country,  as 
plainly  and  directly  as  was  possible. 

That  the  Border  States  were  bitterly  opposed  to 
any  war  that  savored  of  subjugation,  and  especially  of 
one  that  threatened  the  integrity  of  the  states,  no  mat 
ter  what  the  conduct  of  their  citizens,  is  clearly  re- 


CRITTENDEN'S  RESOLUTION.  249 

vealed  by  the  remarks  of  Senator  Willey,  of  Western 
Virginia,  who  said  :  1  "  There  is  a  fear  among  many, 
there  is  a  prejudice  wide  extended  in  the  public  senti 
ment  of  Virginia,  that  the  design  of  this  war  is  subju 
gation  ;  that  the  design  of  this  war,  literally,  in  the 
language  of  the  honorable  Senator  from  Vermont,  is 
to  pass  our  people  under  the  yoke. 

"  I  do  not  understand  such  to  be  the  purpose  of  this 
war.  The  Legislature  of  the  state  which  I  represent 
does  not  understand  such  to  be  the  purpose  of  this 
war.  My  constituency  are  for  the  preservation  of  the 
Union,  the  vindication  of  the  Constitution,  and  the 
execution  of  the  laws.  .  .  .  But  candor  constrains  me 
to  say  that  if  any  different  purpose  shall  be  avowed, 
if  it  shall  ever  be  intimated  or  declared  that  this  is  to 
be  a  war  upon  the  domestic  institution  of  the  South, 
and  upon  the  rights  of  private  property,  every  loyal 
arm  on  the  soil  of  the  Old  Dominion  will  be  instantly 
paralyzed." 

Andrew  Johnson,  who  had  introduced  the  resolu 
tion,2  said  in  explanation  of  it  that  "  The  resolution 
simply  states  that  we  are  not  waging  a  war  for  the 
subjugation  of  states.  If  the  Constitution  is  main 
tained  and  the  laws  carried  out,  the  states  take  their 
places  and  all  rebel  citizens  must  submit.  That  is 
the  whole  of  it." 

Mr.  Doolittle,  of  Wisconsin,  admitted  very  point 
edly  that  the  resolution  was  an  act  not  altogether  legis 
lative  in  its  character,  but  a  declaration  of  a  purpose 
of  the  government.  It  was  a  deed  in  that  sense,  which 
was  to  have  its  effect  upon  the  American  people. 

1  July  25,  1861 :  Cong.  Globe,  259. 

2  July  24,  1861 :  Cong.  Globe,  243. 


250  CONGRESSIONAL    ACTION. 

Senator  Trumbull,  of  Illinois,  drew  a  clear  distinc 
tion  between  a  state  and  the  rebellious  citizens  of  a 
state :  he  would  subjugate  the  rebels,  but  in  respect 
to  the  states,  he  said  very  emphatically :  "I  know 
that  persons  in  the  southern  states  have  sought  to 
make  this  a  controversy  between  states  and  the  fed 
eral  Government,  and  have  talked  about  coercing 
states  and  subjugating  states ;  but  it  has  never  been 
proposed,  so  far  as  I  know,  on  the  part  of  the  Union 
people  of  the  United  States,  to  subjugate  states  or 
coerce  states.  It  is  proposed,  however,  to  subjugate 
citizens  who  are  standing  out  in  defiance  of  the  laws 
of  the  Union,  and  to  coerce  them  into  obedience  to 
the  laws  of  the  Union." 

Senator  Fessenden,  of  Maine,  said :  "  I  do  not 
want  to  carry  on  this  war  for  the  purpose  of  subju 
gating  the  people  of  any  state,  in  any  shape  or  form ; 
and  it  is  a  false  idea  gotten  up  by  bad  men  for  bad 
purposes,  that  it  ever  has  been  the  purpose  of  any 
portion  of  the  people  of  this  country.  I  am  willing, 
therefore,  to  meet  them  face  to  face,  and  say  I  never 
had  that  purpose,  and  have  it  not  now.  But  we  say, 
notwithstanding  we  have  not  that  purpose,  and  dis 
tinctly  avow  it,  we  have  a  purpose,  and  that  is  to  de 
fend  the  Constitution  and  the  laws  of  the  country, 
and  to  put  down  this  revolt  at  whatever  hazard ;  and 
it  is  for  them  to  say  whether  it  is  necessary  for  us,  in 
the  course  of  accomplishing  a  legitimate  and  proper 
object,  to  subjugate  them  in  order  to  do  it.  I  hope 
not ;  and  if  it  is  necessary  and  we  could  do  it,  I 
should  want  to  keep  them  subjugated  no  longer  than 
was  necessary  to  secure  that  purpose.  Thus  far  it 
must  go,  and  no  further.  To  that  it  must  go  at  all 
events  and  hazards." 


BRECKINEIDGE    ON   SUBJUGATION.       251 

Senator  Hale,  of  New  Hampshire,  called  to  the 
recollection  of  the  Senate  his  oft-repeated  declara 
tions  that  the  Government  had  no  more  right,  no 
more  legal  or  constitutional  authority,  to  interfere  with 
slavery  in  the  states  than  it  had  to  interfere  with  the 
condition  of  the  serfs  in  Kussia,  or  with  the  rights 
and  wrongs  of  the  laboring  classes  in  England. 

The  debate,  if  it  may  be  called  one,  had  turned 
upon  the  meaning  and  force  of  the  word  "  subjuga 
tion,"  and  it  had  not  escaped  the  notice  of  John  C. 
Breckinridge,  the  Senator  from  Kentucky,  who  still 
lingered  in  the  United  States  Senate,  that  these  expo 
nents  of  northern  sentiment  were  dwelling  upon,  and 
were  maintaining,  the  notion  of  subjugation,  and  that 
the  most  they  had  succeeded  in  doing  was  to  make  a 
distinction  between  the  states  and  the  people  of  a 
state.  Accordingly,  he  rose  and  avowed  his  belief 
that  the  war  was  being  prosecuted,  according  to  the 
purposes  of  a  majority  of  those  then  managing  the 
legislation,  for  objects  of  subjugation.  He  declared 
his  belief  that,  unless  these  states  which  had  seceded 
from  the  federal  Union  laid  down  their  arms  and  sur 
rendered  at  discretion,  the  majority  in  Congress  would 
listen  to  no  terms  of  settlement,  and  that  those  who 
attempted  to  mediate  would  speak  to  the  winds.  He 
believed,  therefore,  that  the  war,  in  the  sense  and 
spirit  entertained  by  these  Senators,  was  a  war  of 
subjugation,  and  in  saying  this,  he  drew  no  distinction 
between  a  state  and  its  people,  but  left  his  language 
to  be  construed  in  the  most  general  and  comprehen 
sive  sense  of  which  it  was  capable. 

He  supported  this  statement  by  recalling  an  asser 
tion  of  Senator  Sherman,  made  but  a  few  days  before, 


252  CONGRESSIONAL    ACTION. 

to  the  effect  that,  unless  the  people  of  certain  states 
in  the  South  yielded  willing  obedience,  he  would  de 
populate  those  states  and  people  them  over  again,  and 
this  the  Kentuckian  characterized  justly,  as  not  only 
a  war  of  subjugation  but  a  war  of  extermination. 
Breckinridge  also  recalled  an  amendment  offered  by 
Trumbull  to  a  general  bill,  but  two  days  before, 
which  had  received  the  vote  of  a  great  majority  of 
the  Senate,  wherein  it  was  provided  that  any  person 
held  to  service  or  labor,  who  should  be  employed  to 
aid  the  rebellion  in  any  form,  should  be  discharged 
from  service  and  labor.  This  could  apply  to  slaves 
only,  and  was  equivalent  to  a  general  act  of  emanci 
pation  ;  a  proceeding  in  flat  contradiction  to  Hale, 
and  also  to  those  who  had  asserted  their  respect  for 
the  integrity  of  the  states. 

These  argumenta  ad  hominem  of  Breckinridge 
called  forth  tart  and  acrimonious  replies  from  the 
Senators  who  had  been  named,  and  the  debate,  which 
had  started  under  such  favorable  auspices  and  with 
such  good  intentions,  speedily  degenerated  into  accu 
sation  and  recrimination.  The  result  was  unsatis 
factory  :  nevertheless,  by  a  vote  of  thirty  to  five,  the 
Senate  of  the  United  States,  and  by  an  almost  unani 
mous  vote  the  House  of  Representatives,  proclaimed 
to  the  world  that  the  war  on  the  part  of  the  North 
was  "  not  prosecuted  in  any  spirit  of  oppression,  nor 
for  any  purpose  of  conquest  or  subjugation,  nor  for 
the  purpose  of  overthrowing  or  interfering  with  the 
rights  or  established  institutions  of  those  states,  but 
to  defend  and  maintain  the  supremacy  of  the  Consti 
tution  and  all  laws  made  in  pursuance  thereof,  and 
to  preserve  the  Union,  with  all  the  dignity,  equality, 


DOWNFALL    OF   THE    RESOLUTION.        253 

and  rights  of  the  several  states  unimpaired."  The 
votes  of  Congress  upon  the  resolution  reflected  north 
ern  sentiment,  though  the  speeches  of  the  members 
did  not  do  so.1 

It  is  noteworthy  that  of  the  northern  speakers  on 
the  resolution,  two  of  the  most  prominent  and  most 
emphatic,  Senators  Trumbull  and  Doolittle,  were  after 
wards  to  become  conspicuous  defenders  of  the  Presi 
dential  Plan  of  Eeconstruction,  and  to  be  the  targets 
of  bitterness  and  obloquy,  so  great  that  it  may  almost 
be  said  that  they  went  to  their  political  graves  martyrs 
for  the  doctrine  that  a  state  could  not  be  subjugated 
nor  destroyed,  but  that  once  a  state,  always  a  state. 

Less  than  five  months  afterward,  on  the  fourth  of 
December,  when  Congress  was  met  in  regular  session, 
Holman,  of  Indiana,  again  offered  in  the  House  of 
Kepresentatives  the  resolution,  word  for  word,  with 
the  following  addition:  "And  whereas,  since  that 
time  (July  22),  no  event  has  occurred  to  change  the 
policy  of  the  Government :  therefore,  resolved,  That 
the  principles  above  expressed  are  solemnly  reaffirmed 
by  this  House."  Whereupon  the  resolution  as  offered 
was  laid  on  the  table  by  a  House  that  was  nearly 
equally  divided  :  for  the  ayes  were  but  seventy-one, 
and  the  nays  instead  of  two  were  sixty-five  —  and 
this  after  the  last  southern  member  had  left  the 
House  and  had  gone  South.  It  was  a  purely  federal 
vote.2  Inasmuch  as  this  vote  was  not  upon  the  origi 
nal  resolution,  it  cannot  be  accepted  as  the  vote  with 
which  the  resolution  would  have  been  met  had  it  then 
been  offered  for  the  first  time  ;  yet  we  cannot  shut 

1  Cong.  Globe,  1st  sess.  37th  Congress,  257-265. 

2  Cong.  Globe,  15. 


254  CONGRESSIONAL  ACTION. 

our  eyes  to  this  indication  of  the  changed  temper  of 
the  House.  Congress  was  now  fast  falling  into  a 
mood  foreshadowed  by  Thaddeus  Stevens  when  he 
exclaimed :  "  Mr.  Speaker,  I  thought  the  time-'  had 
come  when  the  laws  of  war  were  to  govern  our  action ; 
when  constitutions,  if  they  stood  in  the  way  of  the 
laws  of  war  in  dealing  with  the  enemy,  had  no  right 
to  intervene."1  .-•-  « 

Of  still  greater  significance  than  this  vote  in  the    * 
House  was  the  offer  in  the  Senate  by  Charles  Sumrier 
of  nine  resolutions,2  of  which  the  first  one  was  as  fol 
lows  :  "  Resolved,  that  any  vote  of  secession  or  other  : 
act  by  which  any  state  may  undertake  to  put  an  end  \  to  !» 
the  supremacy  of  the  Constitution  within  its  territory,   .  * 
is  inoperative  and  void  against  the  Constitution,  and  ,' 
when  maintained  by  force  it  becomes  a  practical  abdi-  • 
cation  by  the  state  of  all  rights  under  the  Constitution,.  < 
while  the  treason  which  it  involves  still  further  works   •• 
an  instant  forfeiture  of  all  those  functions  and  powers 
essential  to  the  continued  existence  of  the  state  as  a 
body  politic,  so  that  from  that  time  forward  tli£  terri-  /' 
tory  falls  under  the  exclusive  jurisdiction  of  Congress,    ' 
as  other  territory,  and  the  state  being,  according  to  :  1 
the  language  of  the  law,  felo-da-se,  ceases  to  exist." 

This  was  the  first  attempt  to  commit  Congress  to 
the  vae  metis  policy  which  was  afterwards  carried  out 
by  that  body  with  the  sword.  The  people,  however, 
yet  entertained  no  notion  of  the  kind,  and  would  have 
regarded  it  with  alarm  and  consternation  had  it  ap 
peared  on  the  statute-book.  Prudence  ruled  the  day, 
and  Sumner's  resolutions  were  received  almost  in 

1  August  2,  1861 :  Cong.  Globe,  414. 

2  February  11,  1862 :  Cong.  Globe,  736,  737. 


DEPARTURE  FROM  THE  CONSTITUTION.     255 

silence :  no  action  was  taken  upon  them  nor  upon  the 
resolutions  which  Davis,  of  Kentucky,  offered  for  the 
purpose  of  counteracting  them. 

It  would  be  impossible  to  give  a  full  account  of  the 
development  of  the  spirit  which  rapidly  led  Congress 
to  the  point  of  ignoring  the  doctrine  of  the  indestruc 
tibility  of  the  states,  and  of  ignoring,  too,  the  limita 
tions  set  upon  its  action  by  the  Constitution  of  the 
United  States.  Scarcely  a  day  passed  without  this 
body  being  called  upon  to  consider  its  constitutional 
limitations.  Appropriation  bills,  confiscation  bills, 
emancipation  bills,  conquered  territory  rehabilitation, 
border  state  conditions,  —  a  thousand  questions  were 
constantly  arising  upon  which  the  temper  and  the  sen 
timent  of  Congress  found  expression.  The  change  in 
Congress  can  be  followed  easily  from  the  doctrine  that 
a  state  is  indestructible,  that  it  cannot  commit  treason, 
that  upon  its  mere  motion  "  it  cannot  lawfully  get  out 
of  the  Union,"  to  the  arbitrary  conclusion  that  its 
maintenance  of  secession  by  force  works  an  "  abdica 
tion  "  of  all  its  rights  under  the  Constitution  of  the 
United  States.  Nevertheless,  the  necessity  of  a  clear 
comprehension  of  this  departure  from  ancient  and 
constitutional  principles  is  imperative,  and  this  may 
be  obtained  by  considering  the  action  and  utterance  of 
this  body  on  a  few  of  the  most  prominent  subjects  of 
the  day.  It  will  be  seen  that  this  action  and  these 
utterances  became  more  and  more  revolutionary  as 
time  wore  on.  The  influence  and  measures  of  the  radi 
cals  at  last  prevailed  in  Congress,  as  they  have  done 
in  the  parliamentary  bodies  of  all  revolutionary  times. 
Conservatism  became  a  word  of  scorn  ;  constitution 
ality  was  scouted  ;  every  infraction  of  ancient  law  and 


256  CONGRESSIONAL  ACTION. 

of  ancient  principle  was  justified  by  the  plea  of  "  neces 
sity,"  and  men  like  Dixon,  of  Connecticut,  and  Wilson, 
of  Massachusetts,  actually  thanked  God  on  the  floor  of 
a  body  which  owed  every  breath  of  its  existence  to  law, 
that  a  servant  of  the  government,  then  unknown  to  the 
Constitution,  the  Secretary  of  State,  had  had  the  hardi 
hood  to  defy  the  law  and  to  imprison  men  upon  mere 
suspicion.  Sumner's  or  Stevens'  cry  of  vae  victis  is 
to-day  heard  in  silence  that  is  disturbed  only  by  a 
general  shudder;  to-morrow  the  mob  of  legislators 
are  treading  upon  each  other's  heels  in  the  effort  to 
run  ahead  of  them. 

"  I  desire  to  say,"  was  the  vaunt  of  Thaddeus 
Stevens,1  "  that  I  know  perfectly  well,  as  I  said  before, 
I  do  not  speak  the  sentiments  of  this  side  of  the  House 
as  a  party.  I  know  more  than  that :  that  for  the  last 
fifteen  years  I  have  always  been  a  step  ahead  of  the 
party  I  have  acted  with  in  these  matters  ;  but  I  have 
never  been  so  far  ahead,  with  the  exception  of  the 
principles  I  now  enunciate,  but  that  the  members  of 
the  party  have  overtaken  me  and  gone  ahead ;  and  they 
will  again  overtake  me,  and  go  with  me,  before  this 
infamous  and  bloody  rebellion  is  ended.  They  will  find 
that  they  cannot  execute  the  Constitution  in  the  seced 
ing  states ;  that  it  is  a  total  nullity  there,  and  that 
this  war  must  be  carried  on  upon  principles  wholly 
independent  of  it.  They  will  come  to  the  conclusion 
that  the  adoption  of  the  measures  I  advocated  at  the 
outset  of  the  war,  the  arming  of  the  negroes,  the  slaves 
of  the  rebels,  is  the  only  way  left  on  earth  in  which 
these  rebels  can  be  exterminated.  They  will  find  that 
they  must  treat  those  states  now  outside  of  the  Union 

1  January  8,  1863  :  Cong.  Globe,  243. 


VAE   VICTIS.  257 

as  conquered  provinces  and  settle  them  with  new  men, 
and  drive  the  present  rebels  as  exiles  from  this  coun 
try  ;  for  I  tell  you  they  have  the  pluck  and  endurance 
for  which  I  gave  them  credit  a  year  and  a  half  ago,  in 
a  speech  which  I  made,  but  which  was  not  relished  on 
this  side  of  the  House,  nor  by  the  people  in  the  free 
states.  They  have  such  determination,  energy,  and 
endurance,  that  nothing  but  actual  extermination  or 
exile  or  starvation  will  ever  induce  them  to  surrender 
to  this  Government.  I  do  not  now  ask  gentlemen  to 
endorse  my  views,  nor  do  I  speak  for  anybody  but 
myself;  but  in  order  that  I  may  have  some  credit 
for  sagacity,  I  ask  that  gentlemen  will  write  this 
down  in  their  memories.  It  will  not  be  two  years  be 
fore  they  call  it  up,  or  before  they  will  adopt  my  views, 
or  adopt  the  other  alternative  of  a  disgraceful  submis 
sion  by  this  side  of  the  country."  These  words  had 
hardly  dropped  from  Stevens'  lips,  when  Owen  Love- 
joy  rose  to  find  fault  with  them  because  Stevens  had 
found  no  warrant  for  them  in  the  Constitution,  but  had 
founded  his  conceptions  solely  upon  military  necessity. 
"  My  chief  object,"  said  he,  "  is  to  repudiate  for  my 
self  and  the  Eepublican  party,  and  the  administration, 
the  idea  advanced  by  the  gentleman  from  Pennsylva 
nia,  that  if  it  should  be  necessary,  as  I  believe  with 
him  it  is,  to  annihilate  these  rebels,  to  extirpate  them, 
and  repeople  those  states  with  a  loyal  population,  that 
that  exile  and  that  annihilation  by  military  authority 
would  be  unconstitutional.  Now  I  claim  that  this  is 
precisely,  if  necessary,  just  what  the  Constitution  im 
peratively  requires  of  us  ;  that  it  imposes  it  upon  us 
as  a  sacred  duty  to  destroy  these  rebels,  and,  to  the 
extent  that  may  be  necessary,  to  exterminate  them  in 


258  CONGRESSIONAL    ACTION. 

order  to  restore,  as  a  matter  of  fact,  what  still  exists 
as  a  matter  of  right,  the  constitutional  authority  of 
the  government  of  the  United  States."  l 

Stevens  was  too  good  a  lawyer  to  place  the  vae  metis 
policy  on  constitutional  grounds:  he  placed  it  upon 
the  only  ground  where  it  could  rest,  upon  necessity, 
and  he  hesitated  not  to  brush  away  the  Constitution 
and  all  its  belongings  with  an  impatient  hand ;  and 
this  he  did  by  denying  that  the  Constitution  embraced 
a  state  in  arms  against  the  government.  "  I  hold 
and  maintain,"  said  he,  "  that  with  regard  to  all  the 
southern  states  in  rebellion,  the  Constitution  has  no 
binding  influence  and  no  application."  "  Are  not 
those  seceded  states,"  asked  Dunlap,  "  still  members 
of  this  Union,  and  under  the  laws  of  the  govern 
ment  ? "  "  In  my  opinion  they  are  not,"  was  the 
answer.  "  Then,"  continued  Dunlap,  "  I  would  ask 
the  further  question,  did  the  ordinances  of  secession 
take  them  out  of  the  Union  ?  "  "  The  ordinances  of 
secession,  backed  by  the  armed  power  which  made 
them  a  belligerent  nation,  did  take  them,  so  far  as 
present  operations  are  concerned,  from  under  the  laws 
of  the  nation."  "  Are  they,  then,  members  of  the 
Union  ?  "  persisted  Dunlap.  "  They  are  not,  in  my 
judgment,"  was  Stevens'  answer.2 

The  vaunt  of  Stevens,  that  he  was  always  just  ahead 
of  his  party,  and  that,  in  due  course  of  time,  it  was 
sure  to  catch  up  with  him  and  even  to  run  ahead,  was 
not  an  idle  one.3  How  readily  the  constitutionists  of 

1  Cong.  Globe,  243,  244. 

2  Cong.  Globe,  239. 

"  I  believe  that  not  only  a  majority,  but  perhaps  a  very  consider 
able  majority  of  my  friends  on  this  floor  do  not  go  to  the  extent  to 
which  I  go  in  the  doctrines  which  I  have  enunciated.  They  are  com- 


HALE  ON  ARBITRARY  ARRESTS.          259 

the  Republican  party  were  swept  from  their  moorings 
is  shown  by  the  conduct  of  no  less  a  man  than  John 
P.  Hale,  Senator  of  New  Hampshire.  Hale  had  been 
one  of  the  original  abolitionists,  and  had  been  in  sym 
pathy  with  the  group  of  New  England  abolitionists, 
whose  agitation  had  stirred  the  land  from  the  day  of 
the  Missouri  Compromise.  In  one  respect  he  had  dif 
fered  from  them:  he  revered  the  Constitution,  and 
held  in  sanctity  the  personal  and  political  rights  of  the 
citizen.  To  him  nothing  was  a  gain  which  had  been 
acquired  at  the  cost  of  another's  right,  and  even  the 
triumph  of  the  North,  if  achieved  at  the  cost  of  per 
sonal  liberty,  was  the  worst  of  defeats.  Accordingly, 
when  Senator  Trumbull  offered  a  resolution l  direct 
ing  the  Secretary  of  State,  Seward,  to  inform  the 
Senate  whether,  in  the  loyal  states  of  the  Union, 
any  persons  had  been  arrested  and  imprisoned  by  the 
Secretary's  orders,  and  under  what  law  this  was  done, 
and  Trumbull  had  been  severely  reproached  for  his 
act  on  the  floor  of  the  Senate  by  every  Republican 
leader  that  could  find  breath  to  utter  his  astonishment, 
Hale  had  risen  in  his  place,  and  had  uttered  these 
noble  sentiments :  — 

"  Instead  of  feeling  grief  and  mortification  and 
regret  at  the  introduction  of  this  resolution,  I  thank 
my  friend  from  Illinois  for  introducing  it.  I  think  it 
eminently  proper,  eminently  appropriate ;  and  I  shall 
feel  mortified  if  the  day  has  come  when  any  act  of 
your  Executive  may  not  be  inquired  into  by  his  sworn 

ing-  along-  behind,  and  will  be  up  shortly,  but  they  are  not  up  yet. 
Still  I  do  not  propose  to  take  one  step  backward.     I  hold  the  doc 
trines  which  I  have  enunciated  to  be  true,  and  I  abide   by  them." 
Cong-.  Globe,  244. 
1  December  1,  1861. 


260  CONGRESSIONAL  ACTION. 

constitutional  advisers,  the  Senate  of  the  United 
States.  If,  in  answering  that  resolution,  if  it  passes, 
the  Secretary  of  State  or  the  President  shall  deem  it 
proper  to  send  it  to  us  under  the  seal  of  executive 
secrecy,  I  shall  find  no  fault  with  that ;  but  the  right, 
the  power,  the  propriety,  and  the  necessity  of  making 
this  inquiry,  to  my  mind,  eminently  exists.  What  is 
the  purpose  of  this  inquiry?  Have  not  arrests  been 
made  in  violation  of  the  great  principles  of  our  Con 
stitution  ?  If  they  have,  let  us  know  it,  and  let  us 
know  the  necessity  which  impelled  them.  If  the  fact 
be  that  such  arrests  have  been  made,  and  if  the  neces 
sity  exists  upon  which  they  were  made,  then  I  trust 
there  is  magnanimity,  there  is  justice,  there  is  patriot 
ism,  there  is  forbearance  enough  in  this  Senate  and  in 
this  Congress,  to  throw  the  mantle  over  every  act  that 
has  been  prompted  by  a  patriotic  impulse  to  serve 
the  nation  and  preserve  its  liberties.  You  may  gain 
your  victories  on  the  sea,  you  may  sweep  the  enemy 
from  the  broad  ocean  and  from  all  its  arms  and  from 
all  its  rivers,  until  you  may  hoist,  as  the  Dutch 
admiral  once  hoisted  at  the  head  of  his  flag-staff,  a 
broom,  indicative  that  you  have  swept  the  ocean  of 
your  foes,  and  you  may  crush  every  rebel  that  is 
arrayed  against  you  and  utterly  break  their  power ; 
and  when  you  have  done  all  that,  when  you  have 
established  a  military  power  such  as  the  earth  never 
saw,  and  a  naval  power  such  as  England  never  as 
pired  to  be,  and  constitutional  liberty  shall  be  buried 
amid  the  ashes  of  that  conflagration  in  which  you  have 
overcome  and  destroyed  your  foes  ;  then,  sir,  you  will 
have  got  a  barren  victory,  and  with  all  your  glory  you 
will  have  but  achieved  your  everlasting  shame." 


BALE'S   SELF-CONDEMNATION.  261 

These  were  noble  words,  and  assuredly  the  senti 
ments  were  just,  constitutional,  and  patriotic,  but 
the  resolution  was  buried  in  committee  nevertheless, 
and  the  Secretary,  now  exempt  from  interference, 
redoubled  his  efforts,  and  the  arrests  went  on  merrily 
for  another  year,  when  Senator  Saulsbury,  of  Dela 
ware,  offered  a  similar  resolution  in  which  the  inquiry 
was  addressed  to  the  Secretary  of  War,  who  had  been 
emulating  the  example  of  the  Secretary  of  State. 
Wilson,  who  was  shocked  at  this  arraignment  of  the 
administration  of  the  government,  thought  that  in 
stead  of  the  few  hundred  arrests  which  had  been 
made,  there  ought  to  have  been  several  thousands, 
and  that  not  one  man  in  ten  who  should  have  been 
arrested  had  been  arrested.  Fessenden  and  Collamer 
addressed  themselves  to  the  hopeless  task  of  defend 
ing  the  lettres  des  cachet ;  one  alone,  who  could  not 
defend  the  government,  found  voice  to  condemn  him 
self,  and  this  was  the  way  John  P.  Hale  ate  his  brave 
words  of  one  short  year  before  :  — 

"  I  have  regretted  the  exercise  of  this  power  from 
first  to  last ;  but  will  say  that,  where  the  emergencies 
of  the  country  are  such,  and  the  condition  of  things 
is  such,  as  to  justify  a  resort  to  extraordinary  proceed 
ings  for  the  safety  of  the  Government,  I  am  willing 
that  the  Executive  should  act  upon  that  old  maxim, 
which,  translated  into  plain  English,  is,  4  The  safety 
of  the  republic  is  the  supreme  law.'  I  confess,  for 
myself,  that  nothing  in  the  whole  history  of  the  war 
has  so  embarrassed  me,  has  left  me  in  such  doubt 
what  course  to  take  and  pursue,  as  questions  of  this 
character.  I  have  as  earnest  a  desire  for  the  preser 
vation  of  the  Constitution  in  all  its  integrity  as  any- 


262  CONGRESSIONAL  ACTION. 

body  else ;  and  it  matters  not  to  me  whether  victory 
or  defeat  attends  our  arms,  if,  when  the  war  is  over, 
it  does  not  leave  us  a  constitutional  government.  We 
are  at  war  for  that ;  and  I  hope  we  shall  make  every 
sacrifice  that  is  necessary  to  sustain  it.  That  being 
our  object,  our  end,  and  our  aim,  I  would  not  now, 
while  the  enemy  is  in  the  field,  and  while  the  contin 
gencies  of  battle  are  pending,  and  the  issues  of  life 
or  death  are  suspended  upon  the  result,  impede  or 
hinder  those  who  are  charged  with  the  execution  of 
the  laws  by  inquiries  which  are  not  vital  to  the  gov 
ernment.  I  do  not  look  upon  this  as  so,  because  I 
believe  it  is  one  that  belongs  to  the  judiciary  to  exam 
ine  and  settle  ;  and  if  anybody  has  made  an  attempt 
to  apply  that  remedy  and  has  failed,  it  will  be  time 
enough  then  to  look  to  some  ulterior  course."  l 

Thus  did  a  member  of  an  independent  branch  of 
the  government  surrender  his  will  to  the  keeping  of 
another  branch.  But  if  a  man  like  Hale  was  so  easily 
torn  from  his  antecedents  and  his  principles,  and 
hurried  along  with  the  crowd,  what  could  be  expected 
of  the  less  resolute  and  less  principled,  those  self- 
seekers  who  make  up  the  mass  of  politicians  ?  One 
can  easily  see  how  a  man  of  strong  will,  like  Stevens, 
could  bide  his  time  and  wait  until  the  rest  of  the 
irresolute  crowd  had  caught  up  with  him,  and  then 
smile  at  their  efforts  to  outdo  him. 

In  1861,  Stevens,  superior  to  the  gloom  and  con 
sternation  with  which  the  disaster  of  Bull  Eun  had 
enveloped  the  Capitol,  had  retorted  to  Diven  with  a 
sneer :  "  I  thought  the  time  had  come  when  the  laws 
of  war  were  to  govern  our  action  ;  when  constitutions, 

1  December  8,  1862  :  Cong.  Globe,  28. 


CONGRESS  THE  SUPREME  POWER.       263 

if  they  stood  in  the  way  of  the  laws  of  war  in  dealing 
with  the  enemy,  had  no  right  to  intervene.  Who 
says  the  Constitution  must  come  in,  in  bar  of  our 
action  ?  " l  This  born  leader  of  revolution  had  not 
to  look  long  nor  far  for  support  in  his  radicalism. 
During  the  debate  in  the  Senate,  on  the  Confiscation 
bill,2  Mr.  Morrill,  of  Maine,  gravely  pronounced  an 
opinion  which  cannot  be  passed  by  unnoticed,  and 
which  was  designed  to  have  the  effect  of  a  judicial 
opinion  upon  the  powers  of  Congress.  After  noting 
that  the  nation  was  in  a  state  of  general  internal  hos 
tility,  and  that  it  possessed  the  power  of  self-defence, 
he  proceeded  to  inquire  in  what  department  of  the 
government  this  power  was  lodged.  Sustained  by  the 
Constitution,3  and  by  the  interpretation  put  upon  it 
by  the  Supreme  Court,  in  Brown  v.  The  United 
States,4  he  had  no  difficulty  in  asserting  that  it  lay  in 
Congress  and  nowhere  else :  the  Executive  was  merely 
"  Commander-in-Chief  of  the  Army  and  Navy."  He 
went  on  to  say :  "  In  the  contingency  of  actual  hos 
tilities  the  nation  assumes  a  new  and  extraordinary 
character,  involving  new  relations  and  conferring  new 
rights,  imposing  extraordinary  obligations  on  the  citi 
zens,  and  subjecting  them  to  extraordinary  penalties. 
There  is,  then,  no  limit  on  the  power  of  Congress ; 
but  it  is  invested  with  the  absolute  powers  of  war,  — 
the  civil  functions  of  the  Government  are,  for  the 
time  being,  in  abeyance  when  in  conflict,  and  all  state 
and  national  authority  subordinated  to  the  extreme  au 
thority  of  Congress,  as  the  supreme  power,  in  the  peril 

1  August  2,  1861 :  Cong.  Globe,  414. 

2  February  25,  1862  :  Cong.  Globe,  942,  at  seq. 
8  Article  I.  sect.  & 

*  1  Cranch. 


264  CONGRESSIONAL  ACTION. 

of  external  or  internal  hostilities.  The  ordinary  provi 
sions  of  the  Constitution  peculiar  to  a  state  of  peace, 
and  all  laws  and  municipal  regulations,  must  yield  to 
the  force  of  martial  law  as  resolved  by  Congress." 

The  significance  of  this  claim  of  absolute  power  in 
Congress  cannot  be  overrated.  It  must  be  borne  in 
mind  that  the  object  of  the  bill  under  discussion  was 
the  confiscation  of  the  property  of  rebels,  particularly 
of  slaves,  who  on  the  instant  would  be  set  free  ;  but, 
to  confine  our  observation  to  the  object  set  forth  in 
the  bill,  it  provided  for  the  confiscation  of  the  real 
and  personal  property  of  those  in  rebellion.  When 
it  is  considered  that  there  is  no  clause  in  the  Con 
stitution  expressly  conferring  this  power,  it  follows 
that  such  power  could  not  be  exercised  unless  it  was 
implied  by  the  Constitution.  This  Senator  Howard 
undertook  to  attribute  to  one  of  the  objects  of  the 
Constitution  enumerated  in  the  preamble,  to  "  insure 
domestic  tranquillity,"  and  the  attempts  to  find  a  jus 
tification  for  the  measure  were  divers  and  different. 
Morrill  was  not  of  a  tentative  disposition  :  he  would 
not  accuse  himself  in  excusing  himself ;  he  appealed 
to  the  clause  in  the  Constitution  which  imposed  upon 
Congress  the  duty  of  declaring  and  maintaining  war, 
and  he  claimed  everything,  all  power,  absolute  power 
in  Congress,  as  the  shortest  way  of  enabling  the  radi 
cals  to  attain  their  end. 

The  consequences  of  this  doctrine  of  the  centrali 
zation  of  all  power,  state  and  federal,  in  Congress 
during  a  period  of  "  general  internal  hostility,"  were 
far  reaching.  If  once  Congress  could  maintain  the 
position  that  civil  war  had  centred  irresponsible  power 
in  that  body,  subordinating  the  other  branches  of 


"  OPPORTUNITY! "  265 

government,  and  that  the  seceded  states  had  com 
mitted  felo-da-se  by  actual  rebellion,  it  would  be 
omnipotent,  could  it  unite  upon  one  single  plan  of 
action.  Already  the  bold  utterances  of  the  radical 
leadership  indicated  with  sufficient  certainty  by  whom 
this  one  plan  of  action  would  be  supplied.  At  any 
rate,  a  vigorous  and  self-centred  policy  of  the  legis 
lature,  sitting  as  a  Committee  of  Safety  as  well  as 
a  Congress,  would  find  little  annoyance  from  the 
cautious  policy  of  a  President  who  had  inaugu 
rated  his  administration  by  saying :  "In  view  of  the 
Constitution  and  the  laws,  the  Union  is  unbroken, 
and,  to  the  extent  of  my  ability,  I  shall  take  care,  as 
the  Constitution  itself  expressly  enjoins  upon  me,  that 
the  laws  of  the  Union  be  faithfully  executed  in  all 
of  the  states."  The  expanding  radicalism  of  the 
Republican  party  chafed  at  the  restrictions  which  the 
Constitution  had  placed  around  it:  but  turn  where 
one  would,  the  Constitution  still  blocked  the  way. 
Stevens  saw  this,  and  pushed  the  Constitution  aside  ; 
but  he  was  too  wise  to  claim  centralization  of  all 
powers  in  Congress  before  the  time  for  doing  so  had 
come.  Sumner  saw  it,  and  ignoring  the  Constitution, 
cried,  "  Opportunity,  opportunity,  opportunity.  .  .  . 
Do  not  fail  to  seize  it !  "  Morrill  saw  it,  but  rely 
ing  on  the  investiture  of  Congress  with  declaration  and 
maintenance  of  war,  went  farther  than  them  all  — 
it  was  for  Congress  to  centralize  in  itself  all  powers, 
to  subordinate  "  all  state  and  national  authority  to 
the  extreme  authority  of  Congress,  as  the  supreme 
power."  This  was  revolutionary,  but  then  any  path 
that  lay  over  a  prostrate  Constitution  was  revolution 
ary,  and  this  path  had  already  been  taken. 


CHAPTER  XIII. 

PLANS   OF    RECONSTRUCTION. 

The  Emancipation  Proclamation  —  The  Amnesty  Proclamation  and 
Presidential  Plan  of  Reconstruction  —  The  Congressional  Plan  of 
Reconstruction  and  debate  thereon  in  the  House  of  Representatives. 

DURING  the  year  1862,1  President  Lincoln,  who 
still  clung  to  the  notion  of  compensated  emancipation 
of  slaves,  had  sent  a  message  to  Congress,  recommend 
ing  the  adoption  of  a  joint  resolution  giving  pecuni 
ary  aid  to  any  slave  state  that  might  adopt  the  grad 
ual  abolition  of  slavery!  On  May  ninth,  he  issued  a 
proclamation  countermanding  an  order  of  General 
Hunter  by  which  the  slaves  in  his  department  had 
been  declared  free ;  and,  on  July  twelfth,  he  had 
addressed  an  appeal  to  the  representatives  from  the 
Border  States,  to  sustain  him  in  his  efforts  towards 
gradual  and  compensated  emancipation.2!  Whether  the 
disappointing  response  to  this  appeal 'convinced  the 

1  March  6,  1862.      "  I  recommend  the  adoption  of  a  joint  resolu 
tion,  .  .  .  which  shall  be  substantially  as  follows :   Resolved,  That 
the  United  States   ought  to   cooperate  with  any  state  which  may 
adopt  gradual  abolishment  of  slavery,  giving  to  such  state  pecuniary 
aid,  to  be  used  by  such  state  in  its  discretion,  to  compensate  for  the  in 
conveniences,  public  and  private,  produced  by  such  change  of  system." 
This  resolution  passed  the  Senate  and  the  House.     McPherson's  Hist. 
Rebellion,  209,  210.    See  also  Message  of  December  1,  1862  :  id.,  221. 

Slavery  was  abolished  in  the  District  of  Columbia  by  act  of  Con 
gress,  April  16,  1862.    Id.,  211,  212. 

2  McPherson's  Hist.  Rebellion,  213  et  seq. 


EMANCIPATION  PROCLAMATION.         267 

President  that  he  could  no  longer  hope  for  the  realiza 
tion  of  his  wishes,  and  disposed  him  to  adopt  another 
course,  is  not  certain.  During  the  ensuing  summer, 
he  abandoned  this  position,  and  adopting  the  opinion 
of  the  radicals  that  the  war  was  a  war  against  slavery, 
and  that  it  would  never  reach  a  conclusion  satisfactory 
to  the  North  unless  it  terminated  in  the  abolition  of 
that  institution  everywhere  upon  the  soil  and  territory 
of  the  United  States,  he  issued,  on  September  twenty- 
second,  a  proclamation  to  the  effect  that,  on  January 
1,  1863,  all  persons  held  as  slaves  within  any  re 
bellious  state  should  be  thenceforward  and  forever 
free.  Heretofore,  slavery  within  the  limits  of  a  state 
had  been  universally  held  to  be  inviolable  under  the 
Constitution,  and  nothing  betrays  the  revolutionary 
character  of  the  civil  war  more  clearly  than  does  this 
proclamation.  The  President  would  have  issued  it 
earlier  than  he  had  done,  if  the  federal  reverses  in 
the  field  had  not  afforded  ground  for  a  misconstruc 
tion  of  the  act.  The  first  substantial  success,  the 
battle  of  the  Antietam,  called  forth  the  Emancipation 
Proclamation.  *• 

This  proclamation  was  not  satisfactory  to  the  radi 
cals  ;  it  was  restricted  in  its  operation  to  the  states  in 
rebellion,  and  it  contained  a  reiteration  of  the  Presi 
dent's  purpose  to  recommend  a  grant  of  pecuniary  aid 
to  the  Border  States  for  the  abolishment  of  slavery 
within  their  limits.  A  reference  to  what  was  consid 
ered  the  antiquated  doctrine  of  African  colonization, 
though  in  a  new  guise  and  under  conditions  in  which 
the  freedmen  would  be  set  apart  and  be  debarred  the 
benefits  of  citizenship,  was  also  offensive  to  them. 
When  Congress  met  in  December,  and  the  President's 


268  PLANS   OF  RECONSTRUCTION. 

Message  came  to  be  read,  it  was  found  that  he  had 
been  as  good  as  his  word  ;  for  it  contained  a  recommen 
dation  that  an  article  amendatory  of  the  Constitution 
be  adopted,  whereby  compensation  to  the  emancipat 
ing  states  should  be  provided  for  by  the  federal  gov 
ernment,  and  even  the  form  of  this  article  was  set 
forth.  These  persistent  efforts  of  the  President  in 
the  direction  of  gradual  and  compensated  emancipa 
tion  had  been  exceedingly  distasteful  to  the  radicals  ; 
Hickman,  of  Pennsylvania,  in  the  debate  on  the  reso 
lution  of  March  sixth,  going  so  far  as  to  say :  "  The 
President  of  the  United  States  cannot  be  ignorant 
of  the  fact  that  he  has,  thus  far,  failed  to  meet  the 
just  expectation  of  the  party  which  elected  him  to  the 
office  he  holds ;  and  his  friends  are  to  be  comforted, 
not  so  much  by  the  resolution  itself  as  by  the  body 
of  the  Message,  while  the  people  of  the  Border  States 
will  not  fail  to  observe  that  with  the  comfort  to  us 
is  mingled  an  awful  warning  to  them." 

Although  the  promised  Emancipation  Proclamation 
was  but  a  few  days  in  the  future,  the  past  was  still 
more  certain,  and  the  President's  indisposition  to  ac 
cede  fully  to  the  dictation  of  the  radicals  was  the  rank 
ling  thorn  of  the  moment.  Accordingly,  on  the  ninth 
of  December,  when  the  bill  for  the  admission  of  West 
Virginia  was  under  discussion  in  the  House,  Thaddeus 
Stevens,  in  the  course  of  his  remarks,  thus  addressed 
the  President  over  the  heads  of  his  hearers :  - 

"  I  hold  that  none  of  the  states  now  in  rebellion  are 
entitled  to  the  protection  of  the  Constitution,  and  I 
am  grieved  when  I  hear  those  high  in  authority  some 
times  talking  of  the  constitutional  difficulties  about 
enforcing  measures  against  this  belligerent  power,  and 


STEVENS  ASSAILS   THE  PRESIDENT.      269 

the  next  moment  disregarding  every  vestige  and  sem 
blance  of  the  Constitution  by  acts  which  alone  are 
arbitrary.  I  hope  I  do  not  differ  with  the  Executive 
in  the  views  which  I  advocate.  But  I  see  the  Execu 
tive  one  day  saying :  "  You  shall  not  take  the  prop 
erty  of  rebels  to  pay  the  debts  which  the  rebels  have 
brought  upon  the  northern  states.  Why  ?  Because 
the  Constitution  is  in  the  way.  And  the  next  day  I 
see  him  appointing  a  military  governor  of  Tennessee, 
and  some  other  places.  Where  does  he  find  anything 
in  the  Constitution  to  warrant  that  ?  If  he  must  look 
there  alone  for  authority,  then  all  these  acts  are  fla 
grant  usurpations,  deserving  the  condemnation  of  the 
community.  He^u^t_a^r^e_^witih._me^or^else  his  acts 
are  as  absurd jisjhey  are  unlawful.  .  .  .  Sir,  I  under 
stand  that  these  proceedings  all  take  place,  not  under 
any  pretence  of  legal  or  constitutional  right,  but  in 
virtue  of  the  laws  of  war ;  and  by  the  laws  of  nations 
these  laws  are  just  what  we  choose  to  make  them,  so 
that  they  are  not  inconsistent  with  humanity.  I  say, 
then,  that  we  may  admit  West  Virginia  as  a  new 
state,  not  by  virtue  of  any  provision  of  the  Constitu 
tion,  but  under  our  absolute  power,  which  the  laws 
of  war  give  us  in  the  circumstances  in  which  we  are 
placed.  I  shall  vote  for  this  bill  upon  that  theory, 
and  upon  that  alone  ;  for  I  will  not  stultify  myself  by 
supposing  that  we  have  any  warrant  in  the  Constitu 
tion  for  this  proceeding." 

The  leaven  had  worked,  and  the  time  had  come 
when  Stevens  could  openly  call  upon  the  absolute 
power  of  Congress ;  and  the  President  was  warned 
that  any  policy  that  claimed  the  Constitution  as  its 
foundation  would  not  receive  the  approval  of  an  om- 


270  PLANS   OF  RECONSTRUCTION. 

nipotent  Congress,  which  regarded  the  rebellious  states 
not  as  states  but  as  conquered  provinces.  The  Presi 
dent  was  given  to  understand  that,  if  he  persisted  in 
his  course,  there  would  be  two  plans  of  reconstruction 
in  the  field,  —  the  President's  plan  and  the  Congres 
sional  plan. 

During  the  debate  of  the  twenty-second  of  January, 
1864,  upon  a  joint  resolution  explanatory  of  the  con 
fiscation  act,  Stevens  gave  his  reasons  for  denying 
that  the  Constitution  had  the  least  reference  to  any 
one  of  the  provisions  of  the  bill  in  question.1  He  sup 
ported  his  position,  as  best  he  could,  by  quotations 
from  judicial  decisions  and  from  recognized  authorities 
upon  the  laws  of  nations.  In  the  course  of  his  argu 
ment,  he  was  sharply  interrogated  concerning  his  views 
of  the  status  of  the  rebellious  states,  and  of  the  power 
of  the  government  to  punish  a  state  in  its  corporate 
capacity,  but  he  did  not  hesitate  to  avow  his  position. 
He  scouted  the  Presidential  notion  of  transforming 
rebel  states  into  loyal  ones  :  "  The  idea  that  loyal  citi 
zens,  though  few,  are  the  state,  and  in  state  munici 
palities  may  override  and  govern  the  disloyal  millions, 
I  have  not  been  able  to  comprehend.  If  ten  men  fit 
to  save  Sodom  can  elect  a  governor  and  other  state 
officers  for  and  against  the  eleven  hundred  thousand 
Sodomites  in  Virginia,  then  the  democratic  doctrine 
that  the  majority  shall  rule  is  discarded  and  danger 
ously  ignored.  When  the  doctrine  that  the  quality 
and  not  the  number  of  votes  is  to  decide  the  right  to 
govern,  then  we  have  no  longer  a  republic,  but  the 
worst  form  of  despotism.  ...  It  is  mere  mockery  to 
say  that,  according  to  any  principle  of  popular  gov- 

1  Cong.  Globe,  316  et  seq. 


THE  RADICAL   ULTIMATUM.  271 

eminent  yet  established,  a  tithe  of  the  resident  inhab 
itants  of  an  organized  state  can  change  its  form  and 
carry  on  government  because  they  are  more  holy  or 
more  loyal  than  the  others.  ...  If  the  United  States 
succeed,  how  may  she  treat  the  vanquished  belliger 
ent  ?  .  .  .  Every  inch  of  the  soil  of  the  guilty  portion 
of  this  usurping  power  should  be  held  to  reimburse 
all  the  costs  of  the  war ;  to  pay  all  the  damages  to 
private  property  of  loyal  men  ;  and  to  create  an  ample 
fund  to  pay  pensions  to  wounded  soldiers  and  to  the 
bereaved  friends  of  the  slain.  .  .  .  All  this  done,  and 
yet  the  half  would  be  undone.  ...  It  is  not  only  our 
right  but  our  duty  to  knock  off  every  shackle  from 
every  limb."  While  asserting  his  conclusion  that  all 
the  people  and  all  the  territory  of  the  rebel  states 
were  "  subject  to  the  laws  of  war  and  of  nations,"  he 
added,  "  both  while  the  war  continues  and  when  it 
shall  be  ended." 

Stevens  was  answered  by  Wadsworth,  of  Kentucky, 
who  expressed  his  astonishment  how  any  one  could 
refer  the  House  to  the  laws  of  nations  in  support 
of  this  act :  "  Why,  sir,"  said  he,  "  the  usages  of  na 
tions  in  modern  times  forbid  the  very  means  which 
the  gentleman  would  employ,  and  the  whole  policy 
which  he  advocates."  Wadsworth  agreed  with  Stevens 
that  the  war  powers  were  vested  by  the  Constitution 
in  Congress,  but  maintained  that  the  sovereignty  lay 
in  the  people,  and  that  there  was  no  sovereign  but 
the  people  ;  that  this  sovereign  had  delegated  one 
part  of  the  sovereignty  to  the  states  and  another  part 
to  the  federal  government ;  and  that  this  latter  part 
was  to  be  exercised  by  Congress  and  not  by  the  Presi 
dent.  "Woe  worth  the  day,"  he  cried,  "when 


272  PLANS   OF  RECONSTRUCTION. 

the  American  people  consent  that  that  portion  of  the 
sovereignty  which  they  delegated  to  the  states  shall, 
by  the  accident  of  fortune,  or  the  malice  of  men,  be 
vested  in  one  man,  and  he  the  holder  of  the  sword  and 
the  purse  !  .  .  .  These  states  are  in  the  Union,  and 
there  is  no  power  short  of  successful  revolution  that 
can  drive  them  out  of  it ;  and  it  is  no  longer  worth 
while  for  men  of  intellect  and  courage  to  deny  the  fact 
—  rebellion,  double  damned  as  it  is,  has  been  met  on 
our  part  and  confronted  with  revolution :  a  revolution 
of  the  federal  government  against  the  states,  of  the 
rulers  against  the  people,  of  the  sword  against  privi 
lege,  of  power  against  liberty."  In  the  course  of  his 
remarks,  he  had  said  :  "  If  the  gentleman  from  Penn 
sylvania  is  as  logical  in  action  as  in  argument,  the 
Executive  of  the  United  States  must  meet  with  his 
determined  opposition.  I  understand  him,  indeed,  in 
the  very  speech  to  which  I  have  directed  my  attention, 
to  sneer  at  the  pretence  that  the  Executive  of  the 
United  States  is  vested  with  the  federal  or  state  sov 
ereignty  at  all."  l 

Although  the  resolution  passed  the  House  by  the 
small  majority  of  nine,  this  majority  was  sufficient  to 
indicate  that  the  party  was  "catching  up"  with  Ste 
vens  ;  the  two  years  which  he  had  allowed  to  it  to  do 
so  were  not  much  more  than  half  gone. 

This  debate  may  be  said  to  have  had  its  origin  in 
the  Amnesty  Proclamation  with  which  President  Lin 
coln  had  accompanied  his  Message  at  the  meeting  of 
Congress  in  the  preceding  Deqember,2  and  which  pro 
vided  that  when  a  number  of  persons  in  any  of  the 

1  Cong-.  Globe,  467  et  seq. 

2  December  8,  1863  :  McPherson's  Hist.  RebeUion,  147. 


THE  PRESIDENTIAL  PLAN.  273 

states  south  of  the  Border  States  (that  is  to  say,  where 
the  territory,  or  the  greater  part  of  the  territory,  was 
in  actual  possession  of  the  military  force  of  the  rebels), 
not  less  than  one  tenth  in  number  of  the  votes  cast  at 
the  Presidential  election  of  1860,  should  organize  a 
government,  under  the  conditions  set  forth,  such  should 
be  recognized  as  the  true  government  of  that  state. 

The  President  was  the  first  in  the  field  with  his  plan 
of  reconstruction ;  but  it  was  satisfactory  to  nobody, 
and  none  raised  their  voices  in  its  behalf  except  the 
crowd  that  thronged  the  offices  and  those  who  were 
expectants  of  the  Administration's  favors.  Congress 
gave  it  the  cold  shoulder,  for  it  was  looked  upon  as 
a  clear  usurpation  of  powers  which  belonged  to  that 
body  alone ;  and  the  people  did  not  welcome  it,  for  it 
came  to  them  "  in  shapeless  gear  ;  "  it  was  a  stranger 
to  them,  and  a  stranger  with  no  attractive  nor  even 
propitious  demeanor.  Democrats  and  Republicans 
joined  in  one  cry,  that  it  was  a  creature  unknown  to 
the  Constitution,  and  both,  as  if  inspired  with  the 
same  motive,  fell  upon  it,  stripped  it  of  its  raiment, 
and  lashed  it  in  mockery  naked  through  the  world. 
The  stifled  and  half-muttered  dissatisfaction  with  the 
President .  that  had  been  growing  in  his  party  with 
the  expansion  of  radicalism  now  burst  forth,  and  his 
shortcomings  were  exposed  in  unmeasured  terms.  All 
that  the  Democrats  had  ever  accused  him  of:  his 
weakness,  his  vacillation,  his  fostering  a  personal  ad 
ministration  and  a  personal  party,  his  longing  for  a 
second  term  of  the  Presidency,  his  broken  promises 
of  the  Inaugural  Address  and  of  the  First  Message  ; 
his  desertion  of  constitutional  principles  and  consti 
tutional  methods,  his  illegal  arrests,  his  reliance  on 


274  PLANS  OF  RECONSTRUCTION. 

the  military  in  exclusion  of  the  civil  power,  his  des 
potic  tendencies  manifested  from  the  very  beginning, 
all  were  harped  upon,  until  the  wonder  grew  that 
men  should  have  voted  for  the  expulsion  of  mem 
bers  from  the  House,  when  outside  of  the  walls  of 
the  Capitol  their  own  conduct  and  language  towards 
the  President  was  quite  as  improper  as  anything  the 
dishonored  members  had  ever  done  or  said  inside. 
"  There  has  not  been  a  session  but  that  our  first  act 
was  to  validate  his  infractions  of  the  Constitution  and 
the  laws."  Thaddeus  Stevens  a  year  before 1  had  pic 
tured  Lincoln  "  here  and  there  ordering  elections  for 
members  of  Congress  wherever  he  finds  a  little  col 
lection  of  three  or  four  consecutive  plantations  in  the 
rebel  states,  in  order  that  men  may  be  sent  in  here  to 
control  the  proceedings  of  this  Congress,  just  as  we 
sanctioned  the  election  held  by  a  few  people  at  a  little 
watering-place  at  Fortress  Monroe."  Everything  that 
the  President  had  done  in  the  way  of  setting  up  gov 
ernments  in  the  seceded  states  was  now  brought  home 
to  him  in  bitterness  and  derision  :  "  It  is  a  govern 
ment  of  proclamations,  a  ukase  government,  at  the 
South :  at  the  North,  it  is  a  4  little  bell '  government." 
Congress  had  in  diversCways  asserted  that  it  was 
vested  with  absolute  power  in  time  of  war :  "  I  think 
differently,"  retorted  Lincoln ;  "I  think  that  the  Con 
stitution  vests  the  commander-in-chief  with  the  law  of 
war  in  time  of  war."  There  was  antagonism  between 
Congress  and  the  President ;  he  had  thrown  down  the 
gauntlet,  and  Congress  had  snatched  it  up. 

The    Republicans  in   Congress   were    not    slow    to 
counteract   the   measures    of   the    President,  and  on 

1  December  9,  1862  :  Cong.  Globe,  50. 


INTERNAL  FEUDS.  275 

February  15th,  1864,1  Henry  Winter  Davis,  of  Mary 
land,  reported  a  bill  to  the  House  from  its  Com 
mittee  on  rebellious  states,  to  guarantee  to  certain 
states  a  republican  form  of  government.  The  bill 
was  founded  upon  an  article 2  of  the  Constitution  to 
which  it  was  intended  to  give  effect.  This  bill,  anx 
iously  looked  for  by  the  country,  embodied  the  Con 
gressional  plan  of  Eeconstruction,  and  was  the  result 
of  much  thought  and  of  many  efforts  to  harmonize 
the  rival  and  ever-conflicting  factions  of  the  Republi 
can  party,  and  to  consolidate  in  one  plan  the  different 
views  entertained  concerning  the  status  of  the  rebel 
states  and  their  relations  to  the  federal  government. 
For  it  must  not  be  supposed,  from  what  has  been  said, 
that  the  mass  of  the  Republican  members  had  been 
meek  and  docile  followers  of  the  radical  leadership, 
or  that  they  looked  only  to  Stevens  and  his  group  for 
their  ideas  and  their  modes  of  parliamentary  conduct. 
On  the  contrary,  nowhere  was  there  stronger  oppo 
sition  to  the  leadership  of  the  radicals  than  in  the 
Republican  ranks  ;  nowhere  were  the  reproaches  of 
radicalism  and  of  "  Thad  Stevens  "  and  his  group 
of  agitators  more  sarcastic  and  bitter.  In  fact,  the 
majority  of  the  Republican  members  took  great  pains 
to  pose  before  the  country  as  men  who  tolerated  the 
"  untenable  notions  of  the  radicals,"  but  who  did  not 
accede  to  them.  They  claimed  vehemently  that  they 
founded  their  action  on  the  Constitution :  but  the 
difficulty  with  them  was  that,  in  point  of  fact,  their 
devotion  to  the  Constitution  was  lip-service,  and  that 
they  lacked  the  manliness  of  Stevens  and  his  follow 
ers,  who  openly  and  truthfully  placed  themselves  out- 
1  Cong.  Globe,  668.  2  Article  IV.  sect.  4. 


276  PLANS  OF 'RECONSTRUCTION. 

side  of  a  Constitution  which  they  could  not  obey  and 
violate  at  the  same  time.  The  consequence  was,  that 
the  Republicans  were  more  at  sea  than  were  the  Radi 
cals  ;  their  plans  had  the  confusion  and  abortiveness 
which  always  attends  the  plans  of  those  who  say  one 
thing  and  do  another,  and  floundering  from  step  to 
step,  they  had  no  resource  but  to  adopt  at  last  the 
plans  which  were  ready  at  hand,  and  these  were 
those  of  the  Radicals.1  Thus  Stevens  had  substantial 
grounds  for  the  taunt  that  he  was  always  ahead  of 
his  party,  but  that  it  was  sure  to  catch  up  with  him. 
In  the  mean  time,  the  majority  of  the  Republican 
members  hugged  to  themselves  the  delusion  that  they 
controlled  the  party,  and  pointed  to  their  views  of  the 
relations  existing  between  the  federal  government  and 
the  states  in  rebellion  as  evidence  of  a  set  of  princi 
ples  distinct  from  those  of  the  radicals.  These  views 
were,  that  the  rebels  had  not  ceased  to  be  citizens  of 
the  United  States,  nor  their  states  te  be  states  of  the 
Union,  but  that  by  maintaining  armed  resistance  to 
the  government  in  virtue  of  their  secession,  they  had 
rendered  themselves  incapable  of  exercising  political 
privileges  under  the  Constitution,  and  that,  under  the 
clause  of  -,the  Constitution  guaranteeing  a  republican 
form  of  government  to  the  states,  it  was  the  right 
and  duty  of  Congress  to  reorganize  them,  when  re 
duced  to  its  power  by  means*  of  the  military.  Their 
plan  of  reorganization  was  the  one  now  introduced 
into  the  House.2  It  had  been  awaited  by  the  country 

1  See  Henry  Wilson's  remarks  on  the  extent  of  abolitionism,  viz. : 
"  And  I  say  here  now  there  is  not  a  loyal  state,  etc.  :  "  June  27,  1864 : 
Cong.  Globe,  3308. 

2  H.  R.  244.     The  purpose  set  forth  in  the  title  was,  "  to  guaranty 
to  certain  states  whose  governments  have  been  usurped  or  overthrown, 


THE  CONGRESSIONAL  PLAN.  277 

with  great   anxiety,  and  its  provisions  were    as  fol 
lows  :  — 

The  President  was  authorized  to  appoint  a  Provi 
sional  Governor  in  each  of  the  states  declared  to  be  in 
rebellion,  and  this  governor  was  charged  with  the  civil 
administration  until  a  state  government  had  been  or 
ganized  by  the  people  recognized  by  the  President  after 
obtaining  the  assent  of  Congress.  This  governor, 
as  soon  as  military  resistance  to  the  United  States 
had  been  suppressed,  and  the  people  had  sufficiently 
returned  to  their  obedience  to  the  federal  Constitution 
and  laws,  was  to  direct  the  Marshal  to  enrol  all  the 
white  male  citizens  resident  in  the  state,  in  their  re 
spective  counties  ;  and  wherever  a  majority  of  them 
took  the  oath  of  allegiance,  the  loyal  people  of  the 
state  were  to  elect  delegates  to  a  convention  to  act 
upon  the  r establishment  of  a  state  government. 
This  convention  was  required  to  insert  into  the  state 
constitution  these  provisions  :  1.  That  no  person  who 
had  held  or  exercised  any  civil  or  military  office  (ex 
cept  offices  ministerial,  and  military  officers  below  a 
colonel),  state  or  confederate,  under  the  usurping 
power,  should  vote  for,  or  be  a  member  of,  the  legis 
lature  or  governor.  2.  Involuntary  servitude  was 
forever  prohibited,  and  the  freedom  of  all  persons 
guaranteed  in  said  state.  3.  No  debt,  state  or  con 
federate,  created  by  or  under  the  sanction  of  the  usurp 
ing  power,  should  be  recognized  or  paid  by  the  state. 
The  Provisional  government  was  to  certify  the  adop 
tion  of  the  Constitution  by  the  convention,  and  its  rat 
ification  by  the  electors,  to  the  President,  who,  after 

a  republican  form  of  government."    See  Cong.  Globe,  3448,  July  1, 
1864,  for  its  provisions. 


278  PLANS  OF  RECONSTRUCTION. 

obtaining  the  assent  of  Congress,  was  to  recognize  this 
government  as  the  constitutional  government  of  the 
state,  by  proclamation  ;  and  from  the  date  of  such 
recognition,  and  not  before,  Senators  and  Represen 
tatives  and  electors  for  President  and  Vice-President 
might  be  elected  in  such  state.  Until  this  reorganiza 
tion  was  completed,  the  Provisional  Governor  was  to 
enforce  the  federal  laws  and  those  of  the  state  which 
were  on  the  statute-book  before  the  act  of  secession. 

Davis,  who  had  reported  the  bill,  said  in  its  advo 
cacy  : 1  "  It  is  entitled  to  the  support  of  all  upon  this 
side  of  the  House,  whatever  their  views  may  be  of  the 
nature  of  the  rebellion,  and  the  relation  in  which  it 
has  placed  the  people  and  states  in  rebellion  toward 
the  United  States ;  not  less  of  those  who  think  the 
rebellion  has  placed  the  citizens  of  the  rebel  states 
beyond  the  protection  of  the  Constitution,  and  that 
Congress,  therefore,  has  supreme  power  over  them  as 
conquered  enemies,  than  of  that  other  class  who  think 
that  they  have  not  ceased  to  be  citizens  and  states  of 
the  United  States,  though  incapable  of  exercising  po 
litical  privileges  under  the  Constitution,  but  that  Con 
gress  is  charged  with  a  high  political  power  by  the" 
Constitution  to  guarantee  republican  governments  in 
the  states,  and  that  this  is  the  proper  time  and  the 
proper  mode  of  exercising  it.  It  is  also  entitled  to 
the  favorable  consideration  of  gentlemen  upon  the 
other  side  of  the  House,  who  honestly  and  deliberately 
express  their  judgment  that  slavery  is  dead.  .  .  . 
We  are  now  engaged  in  suppressing  a  military  usur 
pation  of  the  authority  of  the  state  governments. 
When  that  shall  have  been  accomplished,  there  will 

1  Cong.  Globe,  1st  sess.  38th  Congress,  Part  4,  Appendix,  82. 


DAVIS9  SPEECH.  279 

be  no  form  of  state  authority  in  existence  which  Con 
gress  can  recognize.  Our  success  will  be  the  over 
throw  of  all  semblance  of  government  in  the  rebel 
states.  The  government  of  the  United  States  is  then, 
in  fact,  the  only  government  existing  in  those  states, 
and  it  is  then  charged  to  guarantee  them  republican 
governments.  .  .  .  The  denial  of  the  right  of  seces 
sion  means  that  all  the  territory  of  the  United  States 
shall  remain  under  the  jurisdiction  of  the  Constitution. 
If  there  can  be  no  state  government  which  does  not 
recognize  the  Constitution,  and  which  the  authorities 
of  the  United  States  do  not  recognize,  then  there  are 
these  alternatives,  and  these  only,  —  the  rebel  states 
must  be  governed  by  Congress  till  they  submit  and 
form  a  state  government  under  the  Constitution ;  or 
Congress  must  recognize  state  governments  which  do 
not  recognize  either  Congress  or  the  Constitution  of 
the  United  States ;  or  there  must  be  an  entire  absence 
of  all  government  in  the  rebel  states,  and  that  is  an 
archy.  To  recognize  a  government  which  does  not 
recognize  the  Constitution  is  absurd,  for  a  govern 
ment  is  not  a  constitution ;  and  the  recognition  of  a 
state  government  means  the  acknowledgment  of  men 
as  governors  and  legislators  and  judges  actually  in 
vested  with  power  to  make  laws  to  judge  of  crimes, 
to  convict  the  citizens  of  other  states,  to  demand  the 
surrender  of  fugitives  from  justice,  to  arm  and  com 
mand  the  militia,  to  require  the  United  States  to  re 
press  all  opposition  to  its  authority,  and  to  protect  it 
from  invasion  against  our  own  armies  ;  whose  Senators 
and  Representatives  are  entitled  to  seats  in  Congress, 
and  whose  electoral  votes  must  be  counted  in  the  elec 
tion  of  the  President  of  a  government  which  they  dis- 


280  PLANS   OF  RECONSTRUCTION. 

own  and  defy.  To  accept  the  alternative  of  anarchy 
as  the  constitutional  condition  of  a  state  is  to  assert 
the  failure  of  the  Constitution,  and  the  end  of  repub 
lican  government.  Until,  therefore,  Congress  recog 
nize  a  state  government,  organized  under  its  auspices, 
there  is  no  government  in  the  rebel  states  except  the 
authority  of  Congress.  In  the  absence  of  all  state 
government,  the  duty  is  imposed  on  Congress  to  pro 
vide  by  law  to  keep  the  peace,  to  administer  justice, 
to  watch  over  the  transmission  of  decedents'  estates,  to 
sanction  marriages  ;  in  a  word,  to  administer  civil  gov 
ernment  until  the  people  shall,  under  its  guidance, 
submit  to  the  Constitution  of  the  United  States,  and, 
under  the  laws  which  it  shall  impose  and  on  the  con 
ditions  Congress  may  require,  reorganize  a  republican 
government  for  themselves,  and  Congress  shall  recog 
nize  that  government." 

Davis  perceived  the  difficulty  of  going  to  the  root 
of  the  matter,  and  removing  the  cause  of  the  war  by 
an  amendment  to  the  Constitution  prohibiting  slavery 
everywhere  within  the  limits  of  the  United  States. 
For  altogether  there  were  thirty-four  states,  and  it 
would  require  three  fourths  of  these,  or  twenty-six,  to 
effect  the  alteration.  But  of  these  thirty-four  states, 
twenty-five  only  were  represented  in  Congress,  so  that 
if  the  needed  assent  were  forthcoming,  it  would  still 
lack  validity  for  the  want  of  one  vote.  Such  would 
be  the  result,  if  the  action  of  all  the  United  States 
were  required  in  order  to  validate  the  amendment. 
But  even  if  another  view  were  taken,  that  it  was  never 
contemplated  that  the  supreme  political  power  should 
pass  away  from  the  government  of  the  United  States, 
and  that,  consequently,  the  requisite  three  fourths  of 


DAVIS   ON   THE  PRESIDENT'S  PLAN.      281 

the  states  meant  three  fourths  of  the  states  actually 
represented  in  Congress,  which  was  the  view  taken 
by  Thaddeus  Stevens,  even  then,  apart  from  the 
great  delay  involved  in  amending  the  Constitution, 
it  was  doubtful  that  the  assent  of  three  fourths  of 
the  states  could  be  obtained,  so  long  as  states  like 
New  Jersey,  Delaware,  Maryland,  and  Kentucky  were 
present  to  refuse  their  assent.  Moreover,  although 
success  should  crown  the  proposed  amendment  and  it 
should  be  actually  adopted,  it  would  still  leave  the 
whole  field  of  the  civil  administration  of  the  states, 
previous  to  the  recognition  of  state  governments,  all 
laws  necessary  to  the  ascertainment  of  the  will  of  the 
people,  and  all  restrictions  on  the  return  to  power  of 
the  leaders  of  the  rebellion,  wholly  unprovided  for.  It 
would  not  be  a  remedy  for  the  evils  which  the  bill 
proposed  to  meet. 

This  led  him  to  discuss  the  Presidential  Plan  of 
Reconstruction  and  to  expose  its  shortcomings  :  "  The 
next  plan  is  that  inaugurated  by  the  President  of  the 
United  States  in  the  proclamation  of  the  eighth  of 
December,  1863,  called  the  Amnesty  Proclamation. 
That  proposes  no  guardianship  of  the  United  States 
over  the  reorganization  of  the  governments,  no  law 
to  prescribe  who  shall  vote,  no  civil  functionaries  to 
see  that  the  law  is  faithfully  executed,  no  supervis 
ing  authority  to  control  and  judge  of  the  election. 
But  if,  in  any  manner,  by  the  toleration  of  martial 
law,  lately  proclaimed  the  fundamental  law,  under 
the  dictation  of  any  military  authority,  or  under  the 
prescription  of  a  provost  marshal,  something  in  the 
form  of  a  government  shall  be  presented,  represented 
to  rest  on  the  votes  of  one  tenth  of  the  population,  the 


282  PLANS   OF  RECONSTRUCTION. 

President  will  recognize  that,  provided  it  does  not 
contravene  the  proclamation  of  freedom  and  the  laws 
of  Congress  ;  and  to  secure  that,  an  oath  is  exacted. 
Now,  you  will  observe  that  there  is  no  guarantee  of 
law  to  watch  over  the  organization  of  that  government. 
It  may  combine  all  the  population  of  a  state  ;  it  may 
combine  one  tenth  only :  or  ten  governments  may 
come  competing  for  recognition  at  the  door  of  the  ex 
ecutive  mansion.  The  executive  authority  is  pledged  ; 
Congress  is  not  pledged.  It  may  be  recognized  by  the 
military  power,  and  may  not  be  recognized  by  the  civil 
power,  so  that  it  would  have  a  doubtful  existence,  half 
civil  and  half  military,  neither  a  temporary  govern 
ment  by  laws  of  Congress,  nor  a  state  government ; 
something  as  unknown  to  the  Constitution  as  the  rebel 
government  that  refuses  to  recognize  it." 

He  further  considered  the  effect  of  the  Presidential 
plan  upon  the  matter  of  slavery,  and  demonstrated  its 
inefficacy  in  this  respect  :  as  for  the  oath,  it  added 
nothing  to  the  legality  of  the  law,  nothing  to  its  force. 
On  the  other  hand,  the  bill  under  consideration,  or 
the  Congressional  plan,  proposed  to  preclude  the  judi 
cial  question  which  might  be  raised  of  the  validity  and 
effect  of  the  President's  proclamation  or  by  an  irregu 
lar  constitutional  amendment,  by  the  solution  of  the 
political  question,  and  this  was  to  be  done  by  the  par 
amount  power  of  Congress  to  reorganize  governments 
in  the  insurgent  states,  to  impose  such  conditions  as  it 
thought  necessary  to  secure  the  permanence  of  repub 
lican  government,  to  refuse  to  recognize  any  govern 
ments  then  which  did  not  prohibit  slavery  forever. 
A  long  and  excited  debate  continued  in  the  House. 

It  must  be  borne  in  mind  that,  so  far  as  Congress 


CONGRESS  DISTRUSTS  LINCOLN.        283 

and  the  President  were  concerned,  the  issue  was : 
Which  power  shall  prevail  in  the  reconstruction  of  the 
states,  the  unconstitutional  and  executive  power,  or 
the  constitutional  and  legislative  power  ?  Congress 
profoundly  distrusted  Mr.  Lincoln.  He  had  hardly 
been  warm  in  his  seat  when  he  had  begun  the  arrests, 
sometimes  hundreds  of  miles  away  from  the  seat  of 
war  or  where  any  evil  influence  could  seriously  em 
barrass  the  conduct  of  military  affairs ;  he  had  per 
sistently  meddled  with  the  operations  of  troops  in  the 
field ;  he  had  issued  proclamations  to  which  Congress 
had  not  previously  given  its  assent,  and  the  legisla 
ture  had  found  it  necessary  to  make  its  first  business, 
on  coming  together,  to  validate  illegal  and  unconsti 
tutional  acts,  which,  if  the  law  and  the  Constitution 
were  to  have  sway,  must  be  construed  as  acts  of 
usurpation.  The  excessive  prominence  which  the  war 
lent  the  President  was  distasteful  to  the  legislators, 
from  the  fact  that  it  involved  his  personality,  more 
or  less,  in  every  act  of  administration ;  while  the 
additional  fact  that  he  controlled  the  movements  of  a 
vast  army  was  a  cause  of  apprehension  ever  present, 
and  which  betrayed  itself  in  the  assertion  that  the 
President  under  the  Constitution  was  nominally  com- 
mander-in-chief  of  the  Army  and  Navy.  Congress 
feared  the  President  and  his  disposition  to  exert  irre 
sponsibly  his  enormous  power ;  it  secretly  took  to  heart 
the  constant  assertion  of  the  Democrats  and"  their 
proofs  that  the  war  had  engendered  a  military  des 
potism  and  that  the  President  was  the  despot,  and  it 
believed  the  Wadsworths  who  cried  out,  "  Woe  worth 
the  day  when  the  American  people  consent  that  that 
portion  of  the  sovereignty  which  they  delegated  to  the 


284  PLANS   OF  RECONSTRUCTION. 

states  shall,  by  the  accident  of  fortune,  or  the  malice 
of  men,  be  vested  in  one  man,  and  he  the  holder  of 
the  sword  and  the  purse !  "  The  contest,  therefore, 
was  between  two  parties,  and  irresponsible  power  was 
the  prize.  As  far  as  constitutionality  was  concerned, 
the  President  had  little  to  found  his  claims  upon  : 
Congress,  on  the  other  hand,  had  a  great  deal,  but 
this  was  nullified  and  invalidated  by  the  enormity  of 
its  claim  to  absolute  power.  In  fact,  the  strife  was 
one  of  absolutism  and  between  absolutists,  and  the 
struggle  was  for  power  over  a  prostrate  constitution 
that  was  trampled  upon  by  the  combatants. 

The  Democrats,  who  had  become  restricted  in 
action  to  a  party  of  mere  protest,  were  not  silent,  and 
the  view  that  they  took  of  the  relations  of  the  re 
bellious  states  with  the  federal  government,  of  the 
powers  of  Congress  and  of  the  true  nature  of  the  bill, 
or  rather  of  the  Congressional  plan  then  under  con 
sideration,  was  so  lucidly  set  forth  by  Pendleton,  of 
Ohio,1  that  a  comprehensive  view  of  all  sides  of  the 
question  cannot  be  obtained  without  taking  his  re 
marks  into  consideration.  He  opposed  the  bill,  and  in 
the  following  manner  :  "  The  gentleman  maintains  two 
propositions,  which  lie  at  the  very  basis  of  his  views  on 
this  subject.  He  maintains  that,  by  reason  of  this  se 
cession,  the  seceded  states  and  their  citizens  have  not 
ceased  to  be  citizens  and  states  of  the  United  States, 
though  incapable  of  exercising  political  privileges 
under  the  Constitution,  but  that  Congress  is  charged 
with  a  high  political  power  by  the  Constitution  to 
guarantee  republican  government  in  the  states,  and 
that  this  is  the  proper  time  and  the  proper  mode  of 
1  Cong.  Globe,  2105. 


PENDLETON  ON  EFFECT  OF  SECESSION.    285 

exercising  it.  This  act  of  revolution  on  the  part  of 
the  states  has  evoked  the  most  extraordinary  theories 
upon  the  relation  of  the  states  to  the  federal  govern 
ment.  This  theory  of  the  gentleman  is  one  of  them. 
The  ratification  of  the  Constitution  by  Virginia  estab 
lished  the  relation  between  herself  and  the.  federal 
government ;  it  created  the  link  between  her  and  all 
the  states ;  it  announced  her  assumption  of  the  duties, 
her  title  to  the  rights  of  the  confederating  states ;  it 
proclaimed  her  interest  in,  her  power  over,  her  obedi 
ence  to  the  common  agent  of  all  the  states.  If  Vir 
ginia  had  never  ordained  that  ratification,  she  would 
have  been  an  independent  state ;  the  Constitution 
would  have  been  as  perfect  and  the  union  between  the 
ratifying  states  would  have  been  as  complete  as  they 
now  are.  Virginia  repeals  that  ordinance  of  ratifica 
tion,  annuls  that  bond  of  union,  breaks  that  link  of 
confederation.  She  repeals  but  a  single  law,  repeals 
it  by  the  action  of  a  sovereign  convention ;  leaves  her 
constitution,  her  laws,  her  political  and  social  polity 
untouched.  And  the  gentleman  from  Maryland  tells 
us  that  the  effect  of  this  repeal  is  not  to  destroy  the 
vigor  of  that  law,  but  it  is  to  subvert  the  state  govern 
ment,  and  to  render  the  citizens  '  incapable  of  exercis 
ing  political  privileges  ; '  that  the  Union  remains,  but 
that  one  party  to  it  has  thereby  lost  its  corporate 
existence,  and  the  other  has  advanced  to  the  control 
and  government  of  it. 

"  Sir,  this  cannot  be.  Gentlemen  must  not  palter 
in  a  double  sense.  These  acts  of  secession  are  either 
valid  or  they  are  invalid.  If  they  are  valid,  they  sep 
arated  the  state  from  the  Union.  If  they  are  invalid, 
they  are  void ;  they  have  no  effect ;  the  state  officers 


286  PLANS   OF  RECONSTRUCTION. 

who  act  upon  them  are  rebels  to  the  federal  govern 
ment  ;  the  states  are  not  destroyed ;  their  constitutions 
are  not  abrogated ;  their  officers  are  committing  illegal 
acts,  for  which  they  are  liable  to  punishment ;  the 
states  have  never  left  the  Union,  but  so  soon  as  their 
officers,  shall  perform  their  duties,  or  other  officers 
shall  assume  their  places,  will  again  perform  the  duties 
imposed,  and  enjoy  the  privileges  conferred  by  the 
federal  compact,  and  this  not  by  virtue  of  a  new  rati 
fication  of  the  Constitution,  nor  a  new  admission  by 
the  federal  government,  but  by  virtue  of  the  original 
ratification,  and  the  constant  uninterrupted  mainte 
nance  of  position  in  the  federal  Union  since  that  date. 
"  Acts  of  secession  are  not  invalid  to  destroy  the 
Union,  and  valid  to  destroy  the  state  governments,  and 
the  political  privileges  of  their  citizens.  We  have 
heard  much  of  the  twofold  relation  which  citizens  of 
the  seceded  states  may  hold  to  the  federal  government 
—  that  they  may  be  at  once  belligerents  and  rebellious 
citizens.  I  believe  there  are  some  judicial  decisions  to 
that  effect.  Sir,  it  is  impossible.  The  federal  govern 
ment  may  possibly  have  the  right  to  elect  in  which 
relation  it  will  deal  with  them  :  it  cannot  deal  with 
them  at  one  and  the  same  time  in  inconsistent  rela 
tions.  .  .  .  The  seceded  states  are  either  in  the  Union 
or  out  of  it.  If  in  the  Union,  their  constitutions  are 
untouched,  their  state  governments  are  maintained; 
their  citizens  are  entitled  to  all  political  rights,  except 
so  far  as  they  may  be  deprived  of  them  by  the  crimi 
nal  law  which  they  have  infracted.  This  seems  incom 
prehensible  to  the  gentleman  from  Maryland.  In  his 
view  the  whole  state  government  centres  in  the  men 
who  administer  it ;  so  that  when  they  administer  it 


THE  STATE  SURVIVES  SECESSION.       287 

unwisely,  or  put  it  in  antagonism  to  the  federal  gov 
ernment,  the  state  government  is  dissolved,  the  state 
constitution  is  abrogated,  and  the  state  is  left,  in  fact 
and  in  form,  de  jure  and  de  facto,  in  anarchy,  except 
so  far  as  the  federal  government  may  rightfully  inter 
vene.  This  seems  to  be  substantially  the  view  of  the 
gentleman  from  Massachusetts  [Boutwell].  He  en 
forces  the  same  position,  but  he  does  not  use  the  same 
language. 

"  I  submit  that  these  gentlemen  do  not  see  with 
their  usual  clearness  of  vision.  If  by  a  plague  or 
other  visitation  of  God,  every  officer  of  a  state  govern 
ment  should  at  the  same  moment  die,  so  that  not  a 
single  person  clothed  with  official  power  should  re 
main,  would  the  state  government  be  destroyed?  Not 
at  all :  for  the  moment  it  would  not  be  administered, 
but  as  soon  as  officers  were  elected  and  assumed  their 
respective  duties,  it  would  be  instantly  in  full  force 
and  vigor. 

"  If  these  states  are  out  of  the  Union,  their  state 
governments  are  still  in  force  unless  otherwise  changed. 
And  their  citizens  are  to  the  federal  government  as 
foreigners,  and  it  has  in  relation  to  them  the  same 
rights,  and  none  other,  as  it  had  in  relation  to  British 
subjects  in  the  war  of  1812,  or  to  the  Mexicans  in 
1846.  Whatever  may  be  the  true  relation  of  the 
seceded  states,  the  federal  government  derives  no 
power  in  relation  to  them  or  their  citizens  from  the 
provision  of  the  Constitution  now  under  consideration, 
but  in  the  one  case  derives  all  its  power  from  the  duty 
of  enforcing  the  '  supreme  law  of  the  land,'  and  in  the 
other  '  to  declare  war.'  " 

Thus  Pendleton   declared  that  the   seceded  states 


288  PLANS   OF  RECONSTRUCTION. 

were  still  in  the  Union,  —  once  a  state  always  a  state, 
and  that  the  federal  government  derived  no  power  to 
reconstruct  them  from  the  clause  in  the  Constitution 
guaranteeing  them  a  republican  form  of  government,1 
inasmuch  as  having  had  that  form  in  the  first  instance, 
and  that  form  being  unchanged  because  it  was  un 
changeable  by  the  act  of  secession,  these  states  pre 
sented  nothing  upon  which  this  clause  could  operate, 
and  was  therefore  inoperative.  If  this  were  not  so, 
and  the  states  were  out  of  the  Union,  then  the  doc 
trine  of  Thaddeus  Stevens,  that  these  states  were  sub 
ject  to  the  war  powers  of  the  federal  government,  was 
correct.  This  led  him  to  discuss  the  claim  of  Congress 
to  absolute  power,  which  he  did  as  follows :  — 

"  The  second  proposition  of  the  gentleman  from 
Maryland  is  this.  I  use  his  language :  c  That  clause 
vests  in  the  Congress  of  the  United  States  a  plenary, 
supreme,  unlimited  political  jurisdiction,  paramount 
over  courts,  subject  only  to  the  judgment  of  the  peo 
ple  of  the  United  States,  embracing  within  its  scope 
every  legislative  measure  necessary  and  proper  to 
make  it  effectual ;  and  what  is  necessary  and  proper 
the  Constitution  refers  in  the  first  place  to  our  judg 
ment,  subject  to  no  revision  but  that  of  the  people.' 

"  The  gentleman  states  his  case  too  strongly.  The 
duty  imposed  on  Congress  is  doubtless  important,  but 
Congress  has  no  right  to  use  a  means  of  performing  it 
forbidden  by  the  Constitution,  no  matter  how  neces 
sary  or  proper  it  might  be  thought  to  be.  But,  sir, 
this  doctrine  is  monstrous.  It  has  no  foundation  in 
the  Constitution.  It  subjects  all  the  states  to  the  will 
of  Congress ;  it  places  their  institutions  at  the  feet  of 

1  Article  IV.  sect.  4. 


CONGRESS  A  DESPOT.  289 

Congress.  It  creates  in  Congress  an  absolute,  unqual 
ified  despotism.  It  asserts  the  power  of  Congress  in 
changing  the  state  governments  to  be  4  plenary,  su 
preme,  unlimited '  -  — '  subject  only  to  revision  by  the 
people  of  the  whole  United  States.'  The  rights  of  the 
people  of  the  state  are  nothing  ;  their  will  is  nothing. 
Congress  first  decides ;  the  people  of  the  whole  Union 
revise.  My  own  state  of  Ohio  is  liable  at  any  mo 
ment  to  be  called  in  question  for  her  constitution. 
She  does  not  permit  negroes  to  vote.  If  this  doctrine 
be  true,  Congress  may  decide  this  exclusion  is  anti- 
republican,  and  by  force  of  arms  abrogate  that  consti 
tution  and  set  up  another,  permitting  negroes  to  vote. 
From  that  decision  of  Congress  there  is  no  appeal  to 
the  people  of  Ohio,  but  only  to  the  people  of  Massa 
chusetts,  and  New  York,  and  Wisconsin,  at  the  elec 
tion  of  Representatives  ;  and  if  a  majority  cannot  be 
elected  to  reverse  the  decision,  the  people  of  Ohio 
must  submit.  Woe  be  to  the  day  when  that  doctrine 
shall  be  established,  for  from  its  centralized  despotism 
we  will  appeal  to  the  sword !  .  .  . 

"  This  bill,  the  avowed  doctrine  of  its  supporters, 
sweeps  all  [the  rights  of  the  states]  instantly  away. 
It  substitutes  despotism  for  self-government ;  despot 
ism  the  more  severe  because  vested  in  a  numerous 
Congress." 


CHAPTER  XIV. 

THE    CONGRESSIONAL   PLAN    OF   RECONSTRUCTION. 

The  Congressional  Plan  of  Reconstruction  —  Debate  in  the  Senate  — 
Madison  on  the  constitutional  guarantee  of  a  republican  form  of  gov 
ernment  —  Carlile's  remarks  upon  this  guarantee  —  The  President 
withholds  his  assent  to  the  Reconstruction  Bill  —  His  proclamation 
thereon,  and  the  Manifesto  of  Senator  Wade  and  Representative 
Henry  Winter  Davis. 

NOT  until  July  first,  though  it  had  been  reported 
on  the  twenty-seventh  of  May,  was  this  bill  called  up 
in  the  Senate,  when  Brown,  of  Missouri,  offered  an 
amendment 1  to  the  effect  that  the  inhabitants  of  any 
state  which  had  been  proclaimed  to  be  in  rebellion 
should  be  incapable  of  casting  a  vote  for  presidential 
electors  or  of  electing  Senators  or  Representatives 
in  Congress,  until  the  insurrection  was  abandoned. 
Wade  led  off  in  the  debate  which  opened,  and  in  the 
course  of  his  remarks  he  said  :  "  What  is  the  relation 
that  these  seceded  states  hold  to  the  general  govern 
ment  now  ?  Gentlemen  differ  widely  on  that  subject. 
It  is  a  most  important  question,  however,  to  be  ascer 
tained  and  declared  by  Congress,  for  the  Executive 
ought  not  to  be  permitted  to  handle  this  great  ques 
tion  to  his  own  liking.  It  does  not  belong,  under  the 
Constitution,  to  the  President  to  prescribe  the  rule, 
and  it  is  a  base  abandonment  of  our  own  powers  and 
our  own  duties  to  cast  this  great  principle  upon  the 

1  Cong.  Globe,  3449. 


WADE'S  SPEECH.  291 

decision  of  the  executive  branch  of  the  government. 
It  belongs  to  us  ;  and  the  House  of  Representatives, 
in  the  performance  of  their  duty,  have  in  my  judg 
ment  wisely  performed  this  great  function.  I  know 
very  well  that  the  President  from  the  best  motives 
undertook  to  fix  a  rule  upon  which  he  would  admit 
these  states  back  into  the  Union.  It  was  not  upon 
any  principle  of  republicanism;  it  would  not  have 
guaranteed  to  the  states  a  republican  form  of  govern 
ment,  because  he  prescribed  the  rule  to  be  that  when 
one  tenth  of  the  population  would  take  a  certain  oath 
and  agree  to  come  back  into  the  Union,  they  might 
come  in  as  states.  When  we  consider  that  in  the  light 
of  American  principle,  to  say  the  least  of  it,  it  was 
absurd.  The  idea  that  a  state  shall  take  upon  itself 
the  great  privilege  of  self-government  when  there  is 
only  one  tenth  of  the  people  that  can  stand  by  the 
principle  is  most  anti-republican,  anomalous,  and  en 
tirely  subversive  of  the  great  principles  that  underlie 
all  our  state  governments  and  the  general  goverment. 
Majorities  must  rule,  and  until  majorities  can  be 
found  loyal  and  trustworthy  for  state  government, 
they  must  be  governed  by  a  stronger  hand.  It  is 
a  necessity  imposed  upon  the  general  government  by 
the  Constitution  itself." 

Such  was  what  a  Republican  Senator  thought  of  the 
Presidential  Plan  of  Reconstruction.  Senator  Wade 
avowed  his  conviction  that  "  once  a  state  of  this 
Union,  always  a  state  ;  you  cannot  by  wrong  or  vio 
lence  displace  the  rights  of  anybody  or  disorganize 
the  state,"  but  he  concluded  from  the  constitutional 
clause  of  guarantee  that  "  if  a  portion  of  the  people 
undertake  to  overthrow  their  government  and  set  up 


292  THE    CONGRESSIONAL    PLAN. 

another,  it  is  the  manifest  duty  of  the  general  govern 
ment  immediately  to  interfere,  and  if  necessary,  to  in 
terpose  the  strong  arm  of  its  power  to  prevent  such  a 
state  of  things.  Precisely  that  state  of  things  is  upon 
us,"  he  added,  "  and  this  bill  proceeds  upon  that  idea, 
and  discards  absolutely  the  notion  that  states  may  lose 
their  rights  and  that  they  may  be  abrogated  and  may 
be  reduced  to  the  condition  of  territories.  It  denies 
any  such  thing  as  that." 

That  Senator  Wade  was  right  as  far  as  he  went,  in 
his  views  of  the  relations  in  which  the  seceded  states 
then  stood  to  the  federal  government  under  the  Con 
stitution,  cannot  be  gainsaid,  but  he  was  wrong  in 
supposing  that  the  facts  were  such  as  to  warrant  an 
application  of  the  clause  guaranteeing  a  republican 
form  of  government.  No  portion  of  the  people  had 
undertaken  to  overthrow  their  state  government  and 
set  up  another.  On  the  contrary,  the  secessionists 
had  preserved  their  state  governments  in  their  integ 
rity,  and  had  confined  their  efforts  in  government- 
destroying  to  the  dissolution  of  the  federal  Union. 
So  far  as  the  state  governments  were  concerned, 
those  that  had  seceded  were  the  same  as  they  had 
been  when  in  the  Union ;  and  that  is  to  say,  that  they 
were  as  republican  in  form  as  they  had  ever  been. 
There  was  then  no  ground  upon  which  the  federal 
government  could  interfere,  and  no  warrant  for  it  to 
set  up  a  state  government.  This  Carlile,  of  Virginia, 
in  an  able  answer  to  Wade,  which  was  characterized 
by  a  ready  and  thorough  knowledge  of  the  Constitu 
tion,  brought  out  clearly  and  distinctly  in  an  argument 
in  which  his  constitutional  position  was  sustained  by 
the  forty-third  number  of  the  Federalist,  written  by 


MADISON  ON   THE  GUARANTEE.         293 

Madison,  and  comprising  a  commentary  on  the  guar 
antee  clause. 

"  It  may  possibly  be  asked,"  said  Madison,  "  what 
need  could  there  be  of  such  a  precaution,  and  whether 
it  may  not  become  a  pretext  for  alterations  in  the 
state  governments  without  the  concurrence  of  the 
states  themselves.  These  questions  admit  of  ready 
answers.  If  the  interposition  of  the  general  govern 
ment  should  not  be  needed,  provision  for  such  an 
event  will  be  a  harmless  superfluity  only  in  the  Con 
stitution.  But  who  can  say  what  experiments  may 
be  produced  by  the  caprice  of  particular  states,  by 
the  ambition  of  enterprising  leaders,  or  by  the  in 
trigues  and  influence  of  foreign  powers  ?  To  the 
second  question  it  may  be  answered  that  if  the  gen 
eral  government  should  interpose  by  virtue  of  this 
constitutional  authority,  it  will  be  of  course  bound  to 
pursue  the  authority.  But  the  authority  extends  no 
further  than  to  a  guarantee  of  a  republican  form 
of  government,  which  supposes  a  preexisting  govern 
ment  of  the  form  which  is  to  be  guaranteed." 

Thus  far  the  Federalist,  which  Carlile  proceeded  to 
apply  to  the  case  in  hand,  as  follows :  "  I  would  have 
the  government  of  the  United  States  do  nothing  that 
it  has  not  the  power  under  the  Constitution  to  do,  be 
cause  I  believe  that  the  government  of  the  United 
States  is  a  government  of  limited  powers.  I  believe 
it  to  be  its  duty  under  the  grant  of  power  in  the 
Constitution  to  guarantee  the  existence  of  a  preexist 
ing  republican  government.  That  government  ex 
isted  in  South  Carolina ;  the  people  have  not  deter 
mined —  at  least  before  this  war  they  had  not  deter 
mined  —  to  have  any  other  form  than  a  republican 


294  THE   CONGRESSIONAL  PLAN. 

form  of  government.  We  had  recognized  that  gov 
ernment  as  a  republican  form  of  government  by  the 
recognition  of  the  state  in  all  its  departments  and  the 
admission  of  all  its  national  representatives.  It  is 
made  the  duty  of  the  government  of  the  United 
States,  not  of  Congress  ;  and  I  desire  to  call  the  at 
tention  of  the  Senator  to  that,  because  it  bears  upon 
his  assumption  for  Congress  of  power  which  does  not 
belong  to  the  Executive.  It  is  not  alone  the  duty  of 
Congress  to  guarantee  a  republican  form  of  govern 
ment  to  the  people  of  the  several  states ;  the  extent 
of  that  guarantee  is  not  limited  alone  to  the  means 
which  Congress  may  employ ;  but  the  words  of  the 
Constitution  are  '  the  United  States  shall  guarantee.' 
Hence  every  department  of  the  government  is  equally 
bound ;  and  Congress  being  the  legislative  branch  of 
course  participates  to  a  greater  extent  in  the  dis 
charge  of  that  duty.  .  .  . 

"  You  have  no  authority  to  appoint  a  governor  or 
any  civil  officer  in  that  state,  unless  you  are  com 
pelled  to  resort  to  military  power  to  carry  out  your 
constitutional  obligations  and  to  remove  the  obstacles 
which  are  in  the  way  of  the  exercise  of  civil  authority 
through  the  agents  of  the  people  themselves,  which 
they  have  established  by  virtue  of  their  existing  gov 
ernment.  No  such  power  is  given  under  any  provision 
of  the  Constitution ;  none  could  have  been  given  with 
out  your  entirely  changing  the  whole  character  of  this 
government,  which  is  based  upon  the  fundamental 
principle  that  the  military  power  should  always  be 
subordinate  to  the  civil.  .  .  . 

"  But,  sir,  the  Senator  from  Ohio  says  the  Union  is 
to  be  preserved.  So  say  I.  Upon  what  principle  are 


CARLILE   ON  THE   GUARANTEE.  295 

these  states  to  come  back  into  the  Union  ?  The  peo 
ple,  says  the  Senator  from  Ohio,  will  meet  you  with 
that  inquiry.  Sir,  when  was  ever  such  an  inquiry 
suggested  to  the  brain  of  any  loyal  man  in  this  Union  ? 
When  was  such  an  inquiry  ever  put  ?  Never  until 
after  a  policy  different  from  that  which  characterized 
the  commencement  of  this  struggle  was  entered  upon 
by  the  party  in  power.  All  said  the  Union  was  to  be 
restored ;  all  accepted  the  struggle  as  the  use  of  the 
military  power  of  the'  government  in  the  restoration  of 
the  Union.  What  Union  ?  The  Union  of  the  Con 
stitution.  The  Union  into  which  new  states  are  to  be 
admitted.  It  is  not  into  4  a  Union '  but  into  '  this 
Union  '  that  the  states  are  admitted.  What  Union  ? 
The  Union  of  the  Constitution,  none  other ;  and  he 
who  seeks  to  preserve  the  Union  can  only  do  it  by  an 
observance  of  the  Constitution  and  the  use  of  the  con 
stitutional  means  to  restore  it,  not  reconstruct  it.  ... 
In  this  Union,  created  by  this  Constitution,  of  limited 
and  delegated  powers,  all  prescribed  and  written  in  the 
instrument,  you  propose  to  exercise  your  legislative 
power  by  usurping  the  rights  and  liberties  of  the  peo 
ple,  a  power  which  all  the  people  you  represent  could 
not  use  or  could  not  exert  without  the  destruction  of 
the  Union  which  the  Constitution  formed.  There  is 
no  power  in  this  government,  there  is  no  power  in 
the  parties  to  this  government,  there  is  no  power  in 
all  of  the  states  of  this  Union,  to  prescribe  a  consti 
tution  for  the  little  state  of  Rhode  Island.  If  every 
other  state  in  the  Union,  the  adhering  as  well  as  the 
rebellious  states,  if  every  man,  woman,  and  child  in 
them  were  to  meet  and  prescribe  a  constitution  for  the 
people  of  Rhode  Island,  they  would  have  no  power  or 


296  THE   CONGRESSIONAL  PLAN. 

authority  to  do  so  under  the  Union  ;  and  tell  me  where 
the  people's  representatives  derive  the  power  to  do  that 
which  all  the  people  in  their  collective  capacity,  save 
the  small  minority  that  constitutes  that  state,  cannot 
do?" 

The  amendment  was  adopted  by  the  close  majority 
of  one  vote,  and  then  the  bill  was  passed  on  the  second 
of  July.  The  House,  however,  did  not  concur  in  the 
amendment,  and  the  Senate  receded  from  it,  where 
upon  the  bill  went  to  the  President  for  his  approval. 
This  took  place  in  the  very  closing  hour  of  the  session, 
when  the  President,  in  order  to  facilitate  the  passage 
of  bills,  had  gone  to  the  Capitol,  and  in  a  private  room 
was  affixing  his  signature  to  such  bills  as  were  then 
presented  to  him.  What  would  the  President  do? 
Would  he  succumb  to  Congress,  acknowledge  himself 
to  be  in  the  wrong,  recognize  the  paramount  authority, 
the  absolute  power  of  the  representatives  of  the  states 
and  of  the  people,  and  sign  the  bill  ?  He  did  nothing 
of  the  kind,  he  neither  signed  nor  vetoed  it,  he  pock 
eted  it ;  and,  indifferent  to  the  strictures  upon  him  of 
Congress,  or  rather  in  defiance  of  this  body  and  of 
public  opinion,  he  adopted  a  course  which  no  Presi 
dent  had  ever  taken  before,  nor  has  one  ever  taken 
since  then.  The  Constitution  requires  that,  if  any 
bill  shall  not  be  returned  by  the  President  within  ten 
days  (Sundays  except ed)  after  it  shall  have  been  pre 
sented  to  him,  the  same  shall  be  a  law,  in  like  manner 
as  if  he  had  signed  it,  unless  the  Congress  by  their 
adjournment  prevent  its  return,  in  which  case  it  shall 
not  be  a  law.1  Congress  had  adjourned  without  the 
bill  being  signed,  and  consequently  the  bill  could  not 

1  Article  I.  sect.  7. 


THE  PRESIDENT  POCKETS   THE  BILL.    297 

become  a  law.  A  President  who  does  not  approve  of 
a  bill,  but  who  has  his  reasons  for  not  saying  so  to 
Congress,  has  it  in  his  power,  when  it  is  presented  to 
him  during  the  closing  days  of  the  session,  to  prevent 
its  becoming  a  law  and  at  the  same  time  to  save  him 
self  from  officially  annulling  it,  by  "  pocketing  "  it,  as 
it  is  vulgarly  styled,  until  the  adjournment  sine  die 
of  Congress  intervenes  and  accomplishes  his  object  for 
him.  Mr.  Lincoln  was  not  and  has  not  been  the  only 
President  who  has  availed  himself  of  this  constitutional 
limitation  upon  legislation,  but  he  was  the  only  one 
who  followed  up  such  action  by  a  proclamation  upon 
the  subject.  This  he  did  with  great  promptitude. 
When  the  hour  of  adjournment  came  and  the  bill  had 
not  been  returned  with  the  President's  signature,  great 
was  the  wrath  of  the  Republican  members  of  Congress. 
They  had  been  checkmated,  and  they  dispersed  to 
their  homes  in  the  gloom  of  discomfiture.  Moody  and 
silent,  their  feelings  were  by  no  means  soothed  by  the 
recollection  that  it  was  a  presidential  election  year, 
that  their  adversary  had  already  been  nominated  to  the 
presidency,  and  that  it  was  necessary  to  maintain  a 
placid  front.  But  they  were  not  permitted  to  chew 
the  cud  of  disappointment  in  silence ;  for,  on  the 
ninth  of  July,1  before,  in  fact,  many  of  the  members 
had  reached  their  distant  homes,  the  President  broke 
the  silence  with  the  thunder  he  was  too  ready  to  use  in 
those  days,  the  thunder  of  a  proclamation.  He  was 
not  disposed  to  allow  his  foes  to  take  the  stump  in 
their  districts  where  he  would  not  be  present  to  reply, 
without  having  the  first  word  with  the  people.  The 
Congressional  party  cursed  "  this  government  of  proc- 

1  The  proclamation  is  dated  on  the  8th. 


298  THE  CONGRESSIONAL  PLAN. 

lamations  "  in  their  hearts,  but  there  was  no  help  for 
it.  The  President  was  beforehand  ;  he  had  come  out 
best  in  the  game  at  the  Capitol,  and  now  he  would 
make  good  use  of  his  popularity  to  forestall  Congress 
with  the  people. 

The  proclamation  began  with  a  recital  of  the  facts 
that,  at  the  late  session,  Congress  had  passed  a  bill 
to  guarantee  to  certain  states  whose  governments  had 
been  usurped  or  overthrown,  a  republican  form  of 
government,  and  that  this  bill  had  been  presented  to 
the  President  for  his  approval  less  than  one  hour  be 
fore  the  sine  die  adjournment  of  the  session,  and  had 
not  been  signed  by  him ;  and  that  the  bill  contained 
a  plan  for  restoring  the  states  in  rebellion  to  their 
proper  practical  relation  in  the  Union,  which  plan  ex 
pressed  the  sense  of  Congress  upon  that  subject,  and 
which  plan  it  was  then  thought  fit  to  lay  before  the 
people  for  their  consideration.  Therefore,  the  Presi 
dent  made  known  that,  as  in  the  preceding  December, 
when  by  proclamation  he  had  propounded  a  plan  for 
restoration,  he  was  unprepared  by  a  formal  approval 
of  this  bill  to  be  inflexibly  committed  to  any  single 
plan  of  restoration  ;  and  while  he  was  also  unprepared 
to  declare  that  the  free- state  constitutions  and  govern 
ments  already  adopted  and  installed  in  Arkansas  and 
Louisiana  should  be  set  aside  and  held  for  naught, 
thereby  repelling  and  discouraging  the  loyal  citizens 
who  had  set  up  the  same  as  to  further  effort,  or  to 
declare  a  constitutional  competency  in  Congress  to 
abolish  slavery  in  the  states,  but  was  at  the  same  time 
sincerely  hoping  and  expecting  that  a  constitutional 
amendment  abolishing  slavery  throughout  the  nation 
might  be  adopted :  nevertheless,  he  was  fully  satisfied 


THE    WADE  AND  DAVIS  MANIFESTO.      299 

with  the  system  for  restoration  contained  in  the  bill 
as  one  very  proper  for  the  loyal  people  of  any  state 
choosing  to  adopt  it ;  /and  that  he  was,  and  at  all  times 
should  be,  prepared  to  give  the  executive  aid  and 
assistance  to  any  such  people,  so  soon  as  military 
resistance  to  the  United  States  should  be  suppressed 
in  any  such  state,  and  the  people  thereof  should  have 
sufficiently  returned  to  their  obedience  to  the  Consti 
tution  and  the  laws  of  the  United  States,  —  in  which 
cases  military  governors  would  be  appointed,  with  di 
rections  to  proceed  according  to  the  bill.1 

It  would  be  impossible  to  picture  the  wrath  and 
dismay  of  the  adherents  to  the  Congressional  plan. 
When  they  recovered  from  the  blow  sufficiently  to 
collect  their  senses,  it  was  resolved  that  this  procla 
mation  of  war  between  the  President  and  Congress 
should  be  answered,  and  accordingly  a  "  protest  "  or 
rather  a  manifesto  was  issued,  signed  by  Senator 
Wade,  who  had  reported  the  bill  in  the  Senate,  and 
by  H.  Winter  Davis,  who  had  reported  it  in  the 
House.2 

It  was  addressed  "  To  the  supporters  of  the  Gov 
ernment,"  and  it  began  by  saying  that  they  had  read 
without  surprise,  but  not  without  indignation,  the 
proclamation  of  the  President,  and  that  it  was  impos 
sible  to  pass  in  silence  this  proclamation  without  neg 
lecting  their  duty  ;  and  that,  having  taken  as  much 
responsibility  as  any  others  in  supporting  the  Admin 
istration,  they  were  not  disposed  to  fail  in  the  other 
duty  of  asserting  the  rights  of  Congress.  That  the 
President  had  not  signed  the  bill,  and  therefore  it 
was  not  a  law,  it  was  nothing  ;  that  the  proclamation, 

1  July  8,  1864  :  Appendix.  2  Appendix. 


300  THE  CONGRESSIONAL  PLAN. 

being  neither  an  approval  nor  a  veto,  was  a  document 
unknown  to  the  Constitution  of  the  United  States, 
but  that,  so  far  as  it  contained  an  apology  for  not 
signing  the  bill,  it  was  a  political  manifesto  against 
the  friends  of  the  government,  and  so  far  as  it  pro 
posed  to  execute  a  bill  which  was  not  a  law,  it  was  a 
grave  executive  usurpation. 

It  then  went  on  to  say  that  it  was  fitting  that  the 
facts  necessary  to  enable  the  friends  of  the  Admin 
istration  to  appreciate  the  apology  and  the  usurpa 
tion  should  be  spread  before  them,  and  in  the  course  of 
this  disclosure  they  revealed  some  facts  which  had 
occurred  during  the  time  the  bill  was  on  its  passage 
through  Congress,  that  shed  great  light  on  the  meth 
ods  adopted  by  the  President  and  his  party  to  defeat 
the  bill,  and,  with  it,  their  adversaries.  The  mani 
festo  declared,  in  contradiction  of  the  facts  asserted 
by  the  President  in  his  proclamation,  that,  during  the 
hour  preceding  the  sine  die  adjournment,  other  bills 
had  been  signed,  and  that  adjournment  had  been  three 
times  postponed  by  the  votes  of  both  Houses,  and  that 
the  least  intimation  of  a  desire  for  more  time  by  the 
President  to  consider  this  bill  would  have  secured 
a  further  postponement.  Yet  the  committee  sent  to 
ascertain  if  the  President  had  any  further  communi 
cation  for  the  House  of  Representatives  reported  that 
he  had  none  ;  and  the  friends  of  the  bill,  who  had  anx 
iously  waited  on  him  to  ascertain  its  fate,  had  already 
been  informed  that  the  President  had  resolved  not  to 
sign  it.  The  time  of  presentation  therefore  had  nothing 
to  do  with  his  failure  to  approve  it. 

Ignorance  of  its  contents  was  out  of  the  question, 
for  the  bill  had  been  discussed  for  more  than  a  month 


ARRAIGNMENT   OF  THE  PRESIDENT.    301 

in  the  House  of  Representatives,  which  passed  it  on 
the  fourth  of  May  :  it  had  been  reported  to  the  Sen 
ate  on  the  twenty-seventh  of  May,  without  material 
amendment,  and  had  passed  the  Senate  absolutely 
as  it  came  from  the  House,  on  the  second  of  July. 
Indeed,  at  the  President's  request,  a  draft  of  a  bill 
substantially  the  same  in  material  points,  and  identi 
cal  in  the  points  objected  to  by  the  proclamation,  had 
been  laid  before  him  for  his  consideration  in  the  win 
ter  of  1862-1863.  There  was  therefore  no  reason  to 
suppose  that  the  provisions  of  the  bill  took  the  Presi 
dent  by  surprise.  On  the  contrary,  there  was  reason 
to  believe  them  to  have  been  so  well  known  that  this 
method  of  preventing  the  bill  from  becoming  a  law 
without  the  .constitutional  responsibility  of  a  veto  had 
been  resolved  on  long  before  the  bill  had  passed  the 
Senate.  For  the  writers  had  been  informed  by  a 
gentleman  entitled  to  entire  confidence  that,  before 
the  twenty-second  of  June,  in  New  Orleans,  it  was 
stated  by  a  member  of  General  Banks'  staff,  in  the 
presence  of  other  gentlemen  in  official  position,  that 
Senator  Doolittle  had  written  a  letter  to  the  depart 
ment  that  the  House  Reconstruction  Bill  would  be 
staved  off  in  the  Senate  to  a  period  too  late  in  the 
session  to  require  the  President  to  veto  it,  and  that 
Mr.  Lincoln  would  retain  the  bill,  if  necessary,  and 
thereby  ensure  its  defeat.  The  writer  asserted  that 
the  experience  of  Senator  Wade,  in  his  various  efforts 
to  get  the  bill  considered  in  the  Senate,  was  quite  in 
accordance  with  that  plan  ;  and  that  the  fate  of  the 
bill  had  been  accurately  predicted  by  letters  received 
from  New  Orleans  before  it  had  passed  the  Senate. 
Had  the  proclamation  stopped  there,  continued 


302  THE   CONGRESSIONAL  PLAN. 

Wade  and  Davis,  it  would  have  been  only  one  other 
defeat  of  the  will  of  the  people  by  executive  perver 
sion  of  the  Constitution.  But  it  goes  further ;  and 
the  manifesto  proceeds,  rather  hysterically,  to  pick  the 
proclamation  to  pieces,  to  comment  upon  it,  paragraph 
by  paragraph,  and  to  expose  its  weakness  as  well  as 
the  unconstitutional  measures  in  general  of  the  Presi 
dent  and  the  Administration.  In  speaking  of  the 
governments  already  set  up  by  the  President,  it  did 
not  mince  matters :  "  The  President  persists  in  recog 
nizing  those  shadows  of  governments  in  Arkansas  and 
Louisiana  which  Congress  formally  declared  should 
not  be  recognized,  —  whose  representatives  and  sena 
tors  were  repelled  by  formal  votes  of  both  Houses  of 
Congress,  —  which  it  was  declared  formally  should 
have  no  electoral  vote  for  President  and  Vice-Presi- 
dent.  They  are  mere  creatures  of  his  will.  They  are 
mere  oligarchies,  imposed  on  the  people  by  military 
orders  under  the  form  of  election,  at  which  generals, 
provost-marshals,  soldiers,  and  camp-followers  were  the 
chief  actors,  assisted  by  a  handful  of  resident  citizens, 
and  urged  on  to  premature  action  by  private  letters 
from  the  President.  In  neither  Louisiana  nor  Ar 
kansas,  before  Banks'  defeat,  did  the  United  States 
control  half  the  territory  or  half  the  population.  In 
Louisiana,  General  Banks'  proclamation  candidly  de 
clared  :  '  The  fundamental  law  of  the  state  is  martial 
law.'  On  that  foundation  of  freedom  he  erected 
what  the  President  calls  '  the  free  constitution  and 
government  of  Louisiana.'  But  of  this  state,  whose 
fundamental  law  was  martial  law,  only  sixteen  par 
ishes  out  of  forty-eight  parishes  were  held  by  the 
United  States;  and  in  five  of  the  sixteen  we  held 


THE  FARCES   CALLED  ELECTIONS.       303 

only  our  camps.  ...  At  the  farce  called  an  election, 
the  officers  of  General  Banks  returned  that  11,346 
ballots  were  cast ;  but  whether  any  or  by  whom,  the 
people  of  the  United  States  have  no  legal  assurance; 
but  it  is  probable  that  4000  were  cast  by  soldiers  or 
employes  of  the  United  States,  military  or  municipal, 
but  none  according  to  any  law,  state  or  national,  and 
7000  ballots  represent  the  state  of  Louisiana. 

"  Such  is  the  free  constitution  and  government  of 
Louisiana ;  and  like  it  is  that  of  Arkansas.  Nothing 
but  the  failure  of  a  military  expedition  deprived  us  of 
a  like  one  in  the  swamps  of  Florida ;  and  before  the 
Presidential  election,  like  ones  may  be  organized  in 
every  rebel  state  where  the  United  States  have  a  camp. 
The  President,  by  preventing  this  bill  from  becoming 
a  law,  holds  the  electoral  votes  of  the  rebel  states  at 
the  dictation  of  his  personal  ambition." 

The  manifesto  was  a  lengthy  document,  and  dis 
cussed  the  claim  of  Congress  to  the  exclusive  right 
of  reconstruction  of  the  seceded  states,  the  subject  of 
emancipation,  the  "  dictatorial  usurpation "  of  the 
President,  and  the  illegality  of  the  special  oath  pre 
scribed  in  the  Amnesty  Proclamation,  and  concluded 
with  the  following  threat :  "  The  President  has  greatly 
presumed  on  the  forbearance  which  the  supporters  of 
his  Administration  have  so  long  practiced,  in  view  of 
the  arduous  conflict  in  which  we  are  engaged,  and  the 
reckless  ferocity  of  our  political  opponents.  But  he 
must  understand  that  our  support  is  of  a  cause  and 
not  of  a  man ;  that  the  authority  of  Congress  is  para 
mount  and  must  be  respected  ;  that  the  whole  body  of 
the  Union  men  of  Congress  will  not  submit  to  be  im 
peached  by  him  of  rash  and  unconstitutional  legisla- 


304  THE   CONGRESSIONAL  PLAN. 

tion  ;  and  if  he  wishes  our  support,  he  must  confine 
himself  to  his  executive  duties  —  to  obey  and  execute, 
not  make  the  laws  —  to  suppress  by  arms  armed  re 
bellion,  and  leave  political  reorganization  to  Con 
gress.  .  .  .  Let  them  (the  supporters  of  the  govern 
ment)  consider  the  remedy  of  these  usurpations,  and, 
having  found  it,  fearlessly  execute  it." 

Lincoln  received  this  counterblast  with  perfect  se 
renity.  This  kind  of  talk  was  not  a  new  thing  to  him, 
and  he  could  snap  his  fingers  at  the  threat  which  con 
cluded  the  manifesto.  He  had  seen  the  irreconcilables 
in  Congress  organize  into  opposition  against  him,  and 
had  watched  this  opposition  develop  day  by  day  until 
it  controlled  the  floor  of  Congress.  He  had  witnessed 
the  rejection  of  the  state  governments  which  he  had  set 
up,  and  he  had  heard  the  leaders,  one  after  another, 
in  the  same  breath,  denounce  him  and  his  belongings, 
and  claim  paramount  authority  in  themselves  to  do  as 
they  pleased.  As  for  the  abuse,  he  was  used  to  that, 
which,  after  all,  was  nothing  more  than  what  the 
Democrats  and  Wendell  Phillips  had  been  saying  of 
him  all  along  ;  and  as  for  the  unconstitutionally  of  his 
course,  it  did  not  lie  in  the  mouths  of  those  who  recog 
nized  the  Constitution  only  when  they  would  use  it  as 
a  club  to  find  fault  with  him  on  the  score  of  irrev 
erence  towards  that  instrument.  The  contest  was  a 
strife  for  power  between  parties  neither  of  whom  re 
garded  the  Constitution  as  sacred,  and  the  gist  of 
this  episode  lay  in  the  complaint  which  escaped  Wade 
and  Davis,  when  they  exclaimed  ;  "  Congress  passed  a 
bill;  the  President  refused  to  approve  it,  and  then 
by  proclamation  puts  as  much  of  it  in  force  as  he  sees 
fit,  and  proposes  to  execute  those  parts  by  officers  un- 


CONGRESS   OUTWITTED.  305 

known  to  the  laws  of  the  United  States,  and  not  sub 
ject  to  the  confirmation  of  the  Senate." 

In  this  cry  of  despair,  the  truth  was  told.  Lincoln 
had  patiently  waited  for  the  passage  of  the  bill  which 
was  to  lay  before  the  country  the  long-promised  Con 
gressional  Plan  of  Reconstruction.  Then  he  had  put 
it  in  his  pocket,  and,  flushed  with  his  success,  he  had 
proclaimed  to  the  world  that  he  had  converted  to  his 
own  use  the  property  of  the  legislature,  and  that  so 
much  of  it  as  suited  his  purposes  he  would  keep,  and 
the  rest  he  would  throw  away.  He  was  sure  of  his 
ground ;  he  had  been  nominated  for  the  Presidency, 
and  his  election  was  a  foregone  conclusion.  The  con 
ditions  were  such  that  the  malcontents  must  eat  their 
leek,  and  support  him  or  be  ostracized.  It  was  too 
true  :  all  that  Congress  could  show,  after  its  struggle 
for  a  whole  session  with  the  President,  was  that  it  had 
been  outwitted. 


CHAPTER   XV. 

THE    CONGRESSIONAL    PLAN     OF    RECONSTRUCTION  - 
CONTINUED. 

The  debate  in  the  House  on  the  Reconstruction  Bill  —  Last  speech  of 
Henry  Winter  Davis  —  Failure  of  Ashley's  substitute. 

WHEN  Congress  met  in  December,  the  President 
had  been  reflected  by  the  votes  of  all  of  the  twenty- 
five  states  but  three  ;  the  electoral  votes  of  eleven 
states  not  having  been  counted.  The  signs  of  downfall 
on  the  side  of  the  rebellion  were  multiplying  thick  and 
fast ;  but  the  North,  far  from  relaxing  her  efforts  in 
the  field,  redoubled  them.  The  eyes  of  the  country 
were  now  riveted  upon  the  armies  and  the  President ; 
and  what  was  going  on  in  Congress  became  of  second 
ary  importance.  There  was  no  need  to  follow  up  the 
discomfited  party  that  disputed  the  possession  of  power 
with  the  President,  and  accordingly  the  annual  mes 
sage  made  but  a  bare  allusion  to  the  reconstructed  gov 
ernments  of  the  South,  Arkansas  and  Louisiana,  and 
was  absolutely  silent  respecting  any  plan  of  recon 
struction.  But  the  opportunity  presented  by  his  com 
plete  victory  over  the  opponents  of  the  amendment  to 
the  Constitution,  abolishing  slavery  throughout  the 
United  States,  which  the  President  had  recommended 
at  the  preceding  session  of  Congress,  and  which 
had  been  rejected,  was  taken  advantage  of  for  a  rec 
ommendation  to  reconsider  and  pass  that  measure. 
Notwithstanding  the  Congress  was  the  same  as  the  one 


A   SUBSTITUTE.  307 

which,  less  than  eight  months  before,  had  recorded  its 
rejection  of  the  amendment,  the  House  had  now  be 
come  converted  to  the  views  of  the  President  so  far  as 
to  contradict  its  record,  and  to  pass  the  joint  resolu 
tion  adopting  the  amendment  by  a  vote  of  one  hundred 
and  nineteen  to  fifty-six. 

With  the  waning  forces  of  the  Confederacy  daily 
spurring  Congress  to  action,  the  subject  of  recon 
struction  more  and  more  engaged  the  attention  of 
this  body.  On  December  15,  1864,  Ashley  reported 
in  the  House  the  bill  which  had  met  with  such  con 
temptuous  treatment  at  the  hands  of  the  President  at 
the  close  of  the  preceding  session,  but,  upon  one  pre 
text  or  another,  it  went  over  until  January  16,  1865, 
when  Ashley  offered  a  substitute,  with  instructions 
from  the  Select  Committee  on  rebellious  states  to  ask 
that  it  might  be  substituted  for  the  original  bill,  and 
it  was  so  ordered.  This  substitute  expressly  recog 
nized  the  governments  of  Louisiana  and  Arkansas, 
and  provided  that  no  confederate  officer  above  the 
grade  of  colonel  should  vote  for  or  be  a  member  of 
the  legislature,  or  governor  ;  that  involuntary  servi 
tude  be  forever  prohibited,  and  equal  rights  before  the 
law  be  guaranteed ;  that  no  debt,  state  or  confederate, 
created  during  the  rebellion  should  be  recognized ; 
and  that  all  acts,  judicial  or  legislative,  for  the  confis 
cation  or  forfeiture  of  debts  or  property  of  any  loyal 
citizen  of  the  United  States,  should  be  null  and  void. 
Several  amendments  were  proposed,  and  another  sub 
stitute  was  offered  by  Eliot,  of  Massachusetts. 

The  next  day,  further  consideration  was  postponed 
until  February  seventh,  notwithstanding  Davis'  dole 
ful  assertion  that  "  A  vote  to  postpone  is  equivalent 


308      CONGRESSIONAL  RECONSTRUCTION. 

to  a  vote  to  kill  the  bill."  On  February  seventh,  it 
was  again  moved  to  postpone  for  two  weeks  further. 
On  February  twentieth,  the  House  debated  the  bill 
earnestly,1  and  on  the  next  day,  Ashley  withdrew  the 
motion  which  he  had  made  to  recommit  the  bill  to  the 
committee,  and  withdrew  also  Davis'  bill,  and  intro 
duced  another. 

Kelley  led  off  in  one  of  those  long  and  tedious  ha 
rangues  which  no  one  listens  to  nor  reads,  and  which 
are  to  be  found  nowhere  in  such  profusion  as  in  the 
reports  of  the  congressional  debates.  Dawes  followed 
in  opposition  to  the  bill,  and  so  did  Eliot,  who  had  an 
amendment  offered,  substituting  in  effect  the  Presi 
dential  plan  for  the  one  contained  in  the  bill.  Fer 
nando  Wood  followed,  and  called  attention  to  the  fact 
that  the  title  of  the  bill  assumed  that  the  states  in 
rebellion  had  not  a  republican  form  of  government, 
and  contended  that  the  bill  provided  for  anything  but 
such  a  form.  He  was  frequently  taken  to  task  by 
Smith,  whose  position  can  readily  be  known  from  the 
fact  that  he  asserted  that  the  proper  custodian  of  the 
rights  and  interests  of  the  loyal  people  in  the  rebel 
lious  states  was  the  President ;  the  truth  of  which 
assertion  was  denied  by  Wood,  who  maintained  that 
the  President  was  not  the  custodian  of  the  rights  of 
any  portion  of  the  states,  but  that  when  he  interfered 
with  civil  rights,  and  the  rights  of  the  people,  acting 
in  their  sovereign  capacity  to  make  their  own  constitu 
tion  and  laws  subject  to  the  Constitution  of  the  United 
States,  he  was  guilty  of  usurpation  ;  that  the  Consti 
tution  imposed  certain  executive  duties  on  the  Presi 
dent  which  he  was  to  perform  merely  as  an  executive 

1  Cong.  Globe,  934  et  seq. 


THE  BILL  REVIVED.  309 

authority.  Le  Blond  also  spoke  in  opposition  to  the 
bill.  At  this  stage,  Ashley  withdrew  the  substitute 
and  fell  back  on  the  original  bill  with  modifications. 
This  bill  did  not  recognize  Louisiana  or  Arkansas. 
In  withdrawing  the  substitute,  Ashley  frankly  re 
vealed  the  schism  in  the  Republican  party.  The  sub 
stitute,  he  said,  had  been  a  compromise  measure,  by 
which  he  had  sought  to  conciliate  those  whose  sen 
sibilities  had  been  wounded  by  the  action  of  the  Presi 
dent  when  he  pocketed  the  original  bill  at  the  close  of 
the  preceding  session.  In  order  to  secure  universal 
suffrage  to  the  liberated  blacks,  he  had  consented  to 
the  conditional  recognition  of  Louisiana,  Arkansas, 
and  Tennessee.  But  he  had  failed  to  effect  a  com 
promise,  and  therefore  he  offered  again  the  original 
bill,  with  a  provision  that  the  governor  should  execute 
such  laws  only  of  the  old  states  as  related  to  the 
protection  of  persons  and  property,  and  that  all  laws 
inconsistent  with  this  bill,  and  all  laws  recognizing 
the  relation  of  master  and  slave,  should  not  be  en 
forced.  He  would  not  recognize  the  governments  of 
Louisiana  unless  he  could  secure  negro  suffrage.  At 
the  same  time,  he  had  little  hope  of  the  success  of 
this  bill ;  for  it  was  very  clear  to  his  mind  that  no 
bill  providing  for  the  reorganization  of  loyal  state 
governments  in  the  rebel  states  could  pass  this  Con 
gress. 

Henry  Winter  Davis  then  followed  in  one  of  the 
most  characteristic  speeches  of  his  life,  and  the  last 
important  address  that  he  made  to  the  House.  He, 
too,  had  no  hope  of  the  bill  passing.  His  words 
breathed  unconquerable  detestation  and  defiance  of 
President  Lincoln.  It  was  the  defiance  of  a  proud 


310      CONGRESSIONAL  RECONSTRUCTION. 

spirit  that  recognized  the  fate  which  awaited  him, 
but  of  one  which  would  never  kiss  the  rod  that  smote 
him.1  He  dwelt  upon  two  alternatives  as  the  result 
of  the  bill  failing  to  pass  :  either  sixty-five  represen 
tatives  and  twenty-two  senators  would  claim  admission 
from  the  South  when  the  war  was  over,  and  would 
be  entitled  to  admission  ;  or  the  servile  tools  of  the 
Executive  would  be  there  to  embarrass  legislation, 
humble  Congress,  degrade  the  name  of  republican 
government  for  two  years,  and  then  the  natural  ma 
jority  of  the  South,  rising  indignantly  against  that 
humiliating  insult,  would  swamp  Congress  with  rebel 
representatives  and  be  its  masters.  These  were  the 
alternatives,  and  there  would  be  no  middle  ground. 

For  the  members  who  had  voted  for  the  bill  in  the 
preceding  session,  but  who,  he  knew,  had  deserted 
him,  and  were  waiting  for  him  to  cease  speaking  in 
order  to  vote  against  it,  his  contempt  was  unmeasured. 
That  they  should  have  discovered  since  the  vote  of 
the  preceding  session  that  the  bill  violated  the  prin 
ciples  of  republican  government  and  sanctioned  the 
enormities  of  slavery  was  quite  as  remarkable  as  that 
these  features  should  have  been  overlooked  before  that 
vote  :  but  they  had  been  neither  overlooked  before 
nor  discovered  since.  The  vote  was  before  a  pending 
election :  it  was  the  will  of  the  President  which  had 
been  discovered  since.  The  weight  of  that  species  of 
argument  he  was  not  able  to  estimate :  it  bade  defi 
ance  to  every  rule.  It  was  that  subtle,  pervading 
epidemic  of  the  time  that  penetrated  the  closest  argu 
ment  as  spirit  penetrated  matter ;  that  diffused  itself 
with  the  atmosphere  of  authority,  relaxing  the  energy 
1  Cong.  Globe,  2d  Sess.  38th  Cong.,  969. 


DAVIS'  LAST  SPEECH.  311 

of  the  strong,  bending  down  the  upright,  diverting 
just  men  from  the  path  of  rectitude,  and  substituting 
the  will  and  favor  of  power  for  the  will  and  interest 
of  the  people,  as  the  rule  of  legislative  action.  He 
addressed  the  House  as  follows  : 1  "  The  bill  which  is 
now  the  test,  to  which  amendments  are  pending,  is 
the  same  bill  which  received  the  assent  of  both  Houses 
of  Congress  at  the  last  session,  with  the  following 
modifications,  to  suit  the  tender  susceptibilities  of  gen 
tlemen  from  Massachusetts.  .  .  .  There  has  been  one 
section  added  to  meet  the  present  aspect  of  public 
affairs ;  that  section  authorizes  the  President,  instead 
of  pursuing  the  method  prescribed  in  the  bill  in  refer 
ence  to  the  states  where  military  resistance  shall  have 
been  suppressed,  in  the  event  of  the  legislative  author 
ity  under  the  rebellion  in  any  rebel  state  taking  the 
oath  to  support  the  Constitution  of  the  United  States, 
annulling  their  confiscation  laws  and  ratifying  the 
amendment  proposed  by  this  Congress  to  the  Consti 
tution  of  the  United  States,  before  military  resistance 
shall  be  suppressed  in  such  state,  to  recognize  them 
as  constituting  the  legal  authority  of  the  state,  and 
directing  him  to  report  those  facts  to  Congress  for  its 
assent  and  ratification.  With  these  modifications,  the 
bill  which  is  now  the  test  for  amendment  is  the  bill 
which  was  adopted  by  this  House  at  the  last  ses 
sion.  .  .  . 

"  It  is  only  the  House  itself  that  can  reverse  that 
judgment  and  impeach  its  assertion  of  its  own  powers. 
Nor  need  I  trouble  myself  to  answer  the  arguments  of 
the  gentlemen  who  at  the  last  session  voted  for  this 
bill,  and  who,  in  the  quiet  and  repose  of  the  interven- 
1  February  21,  1865 :  Cong.  Globe,  969,  970. 


312      CONGRESSIONAL  RECONSTRUCTION. 

ing  period,  have  criticised  in  detail  the  language,  and, 
not  stopping  there,  have  found  in  its  substance  that 
it  essentially  violates  the  principles  of  republican  gov 
ernment  and  sanctions  the  enormities  of  the  laws  with 
which  the  existence  of  slavery  has  covered  and  defiled 
the  statutes  of  every  rebel  state.  That  these  discover 
ies  should  have  been  made  since  the  vote  of  last  ses 
sion  is  quite  as  remarkable  as  that  they  should  have 
been  overlooked  before  that  vote.  But  they  were 
neither  overlooked  before  nor  discovered  since.  The 
vote  was  before  a  pending  election.  It  is  the  will  of 
the  President  which  has  been  discovered  since." 

This  sarcasm  was  directed  particularly  towards 
Dawes  and  Eliot,  of  Massachusetts.  He  then  pre 
dicted  the  course  events  would  take  :  that  by  the  next 
December,  possibly  by  the  fourth  of  July,  the  rebellion 
would  be  ended,  and  sixty-five  representatives  and 
twenty-two  senators  from  the  subjugated  states  would 
be  claiming  admission.  This  consequence,  which  the 
Democrats  would  have  witnessed  with  equanimity, 
was  fraught  with  horror  to  the  speaker,  who  exclaimed : 
"  I  am  no  prophet,  but  that  is  the  history  of  next  De 
cember,  if  this  bill  be  defeated ;  and  I  expect  it  not 
to  become  a  law." 

Should,  however,  the  President  do  what  Davis 
averred  that  there  was  not  the  least  reason  to  suppose 
that  he  desired  to  do,  namely,  treat  those  who  held 
power  in  the  South  as  rebels  and  not  as  governors  or 
legislators,  and  then  set  to  work  to  hunt  out  the  pliant 
and  supple  "  Union  men,"  so-called,  who  had  cringed 
before  the  storm,  but  who  would  be  willing  to  govern 
their  fellow-citizens  under  the  protection  of  United 
States  bayonets;  should  "representatives  like  what 


PROPHETIC   WARNINGS.  313 

Louisiana  has  sent  here,  with  such  a  backing  of  votes 
as  she  has  given,  appear  here  at  the  doors  of  this  hall, 
whose  representatives  are  they  ?  ...  In  Louisiana 
they  are  the  representatives  of  the  bayonets  of  Gen 
eral  Banks  and  the  will  of  the  President,  as  expressed 
in  his  secret  letter  to  General  Banks.  If  you  admit 
such  representatives,  you  must  admit,  on  the  same 
,  basis  and  under  the  same  influences,  representatives 
from  every  state  from  Texas  to  Virginia.  ...  If  the 
rebel  representatives  are  not  here  in  December  next, 
you  will  have  here  servile  tools  of  the  Executive  who 
will  embarrass  your  legislation,  humble  your  Congress, 
degrade  the  name  of  republican  government  for  two 
years,  and  then  the  natural  majority  of  the  South,  ris 
ing  indignantly  against  that  humiliating  insult,  will 
swamp  you  here  with  rebel  representatives,  and  be 
your  masters.  These  are  their  alternatives,  and  there 
is  no  middle  ground.  .  .  . 

"  Sir,  my  successor  may  vote  as  he  pleases.  But 
when  I  leave  this  hall,  there  shall  be  no  vote  from  the 
third  Congressional  District  of  Maryland  that  recog 
nizes  anything  but  the  body  and  mass  of  the  people 
of  any  state  as  entitled  to  govern  them,  and  to  govern 
the  people  that  I  represent.  And  they  who  may  wish 
to  substitute  one  tenth,  or  any  other  fractional  minor 
ity,  for  that  great  power  of  the  people  to  govern  may 
take,  and  shall  take,  the  odium.  Ay  !  I  shall  brand 
it  upon  them  that  in  the  middle  of  the  nineteenth  cen 
tury,  in  the  only  free  republic  that  the  world  knows, 
where  alone  the  principles  of  popular  government  are 
the  rules  of  authority,  they  have  gone  to  the  dark  ages 
for  their  models,  reviving  the  wretched  examples  of 
the  most  odious  governments  the  world  has  ever  seen, 


314      CONGRESSIONAL  RECONSTRUCTION. 

and  propose  to  stain  the  national  triumph  by  creating 
a  wretched,  low,  vulgar,  corrupt,  and  cowardly  oligar 
chy  to  govern  the  freemen  of  the  United  States  —  the 
national  arms  to  guarantee  and  enforce  their  oppres 
sions.  Not  by  my  vote,  sir ;  not  by  my  vote  !  " 

Thus  bitterly,  and  not  without  a  touch  of  pathos, 
did  the  author  of  that  which  was  known  far  and  wide 
as  "  the  Reconstruction  Bill  "  breathe  his  forebodings 
of  the  future  and  his  defiance  of  the  President.  He 
and  Thaddeus  Stevens  had  united  in  moving  the  reso 
lution  for  a  special  committee,  and  there  is  little 
doubt  that,  though  they  did  not  agree  in  their  views 
respecting  the  relations  of  the  seceded  states  with  the 
federal  government,  they  were  united  in  their  distrust 
of  President  Lincoln,  and  that  Davis  joined  forces 
with  Stevens  in  order  to  wrest  from  what  he  consid 
ered  Lincoln's  usurping  hand  the  power  over  the 
states  that  were  being  reduced  to  submission.1  The 
Amnesty  Proclamation,  with  its  assertion  of  the  right 
of  the  executive  branch  of  the  government  to  recon 
struct  the  seceded  states,  had  startled,  not  the  Demo 
crats  alone  who  had  made  it  their  business  to  cry 
aloud,  but  it  had  startled  and  shocked  the  constitu- 
tionists,  who,  like  Davis,  still  lingered  in  the  Repub 
lican  party,  and  it  had  roused  to  wrath  the  congres 
sional  radicals  whose  domain  the  President  had  in 
vaded.  Davis  could  not  break  with  a  party  in  which 
lay  his  sole  influence,  nor  could  he  follow  the  crowd 
who  had  "  discovered  the  will  of  the  President  "  since 

1  On  the  final  vote  to  lay  the  bill  and  amendments  on  the  table, 
Stevens  voted  to  do  so.  Stevens,  in  his  speech  in  the  House,  May  2, 
1864 :  Cong1.  Globe,  2042,  bitterly  resented  Blair's  insinuations  of  his 
hostility  to  the  President ;  but  he  protested  too  much,  and  he  damned 
the  President  with  faint  praise. 


THE  BILL  IS    TABLED.  315 

the  presidential  election.  Trumbull  and  Cowan  were 
fast  bringing  upon  themselves  the  hatred  of  the  men 
from  whom  they  were  daily  getting  farther  and  farther 
away;  Hale  had  not  secured  the  thrift  that  follows 
fawning :  Davis  could  not  and  would  not  tempt  their 
fate.  Nor  could  he  join  the  radicals.  He  had  no 
where  to  go,  and  he  was  alone.  A  lover  of  the  Con 
stitution,  albeit  an  indiscreet  one,  he  was  out  of  place 
among  those  who  were  its  enemies :  he  made  the  mis 
take  of  supposing  that  good  intentions  were  good  prin 
ciples  ;  he  awoke  to  find  that  he  had  read  the  Consti 
tution  wrong,  and  that  his  allies  had  not  sought  his 
company  for  the  good  that  was  in  it,  but  for  the  uses 
to  which  they  could  put  him.  The  alliance  between 
Thaddeus  Stevens  and  Henry  Winter  Davis  was  an 
unnatural  alliance,  and  all  men  but  Davis  saw  what  it 
really  amounted  to.  The  scales  fell  from  his  eyes 
when  he  beheld  Dawes  and  Eliot  in  the  enemy's  camp, 
and  heard  them  protest  that  they  "  had  never  known 
the  man."  This  was  the  last  great  effort  of  Henry 
Winter  Davis'  life,  and  it  ended  in  bitter  failure ;  he 
could  hardly  be  said  to  have  outlived  his  disappoint 
ment,  for  with  the  closing  year  he  died. 

The  bill  was  laid  on  the  table  by  a  vote  of  ninety- 
one  to  sixty-four.  The  Democrats,  who  had  nothing 
but  a  choice  of  evils,  voted  with  the  radicals,  inas 
much  as  the  negro  suffrage,  admitted  in  the  seventh 
section,  was  restricted,  and  because  they  could  not  rec 
ognize  the  President's  unconstitutional  reorganization 
of  Louisiana  and  Arkansas.  The  next  day,  Ashley 
endeavored  again  to  get  his  substitute  before  the 
House,  but  he  was  unsuccessful,  and  the  bill  was  laid 
on  the  table  by  a  vote  of  eighty  to  sixty-five ;  not 


316      CONGRESSIONAL  RECONSTRUCTION. 

voting,  thirty-seven.  This  was  on  the  twenty-second 
of  February,  and  the  session  closed  on  the  fourth  of 
March  without  further  attempt  to  pass  the  Reconstruc 
tion  Bill.  Throughout  the  whole  matter,  Ashley,  as 
the  witty  Cox  did  not  fail  to  point  out,  was  on  both 
sides  of  the  fence  at  once.  He  inserted  the  word 
"  white,"  yet  declared  to  the  House  that  he  would 
vote  to  strike  it  out,  and  he  inserted  a  clause  for  the 
recognition  of  Louisiana  and  Arkansas,  and  yet 
avowed  his  disbelief  that  their  reorganization  was  a 
valid  one.  The  fact  is,  that  Ashley,  who  was  bent 
upon  negro  suffrage,  was  willing  to  sacrifice  anything 
in  the  present,  so  long  as  he  had  reason  to  hope  for 
success  in  the  future.  "  I  do  not  expect  to  pass  this 
bill  now,"  said  he.  "  At  the  next  session,  when  a 
new  Congress  fresh  from  the  people  shall  have  assem 
bled,  with  the  nation  and  its  representatives  far  in 
advance  of  the  present  Congress,  I  hope  to  pass  even 
a  better  bill.  I  know  that  the  loyal  people  of  this 
country  will  never  be  guilty  of  the  infamy  of  inviting 
the  loyal  blacks  to  unite  with  them  in  fighting  our 
battles,  and  after  our  triumph  deny  these  loyal  blacks 
political  rights."  1 

1  38th  Cong. ;  Cong.  Globe,  1002. 


CHAPTER  XVI. 

ENFORCEMENT   OF   THE   PRESIDENTIAL   PLAN    OF 
RECONSTRUCTION. 

The  reconstruction  of  Tennessee  —  North  Carolina — Arkansas  — 
Louisiana. 

As  the  reconstruction  of  the  states  lately  in  rebel 
lion  originated  during  the  first  administration  of  Pres 
ident  Lincoln,  and  at  the  time  of  his  death  was  in 
process  of  operation,  a  brief  survey  of  the  progress 
made  under  his  auspices  is  necessary  to  understand  the 
part  performed  by  his  successor,  and  the  attitude  as 
sumed  towards  "  the  Presidential  plan  "  by  Congress. 

The  first  one  of  the  rebellious  states  that  was  oc 
cupied  by  the  United  States  forces  to  such  an  extent 
as  to  compel  the  federal  government  to  consider  the 
subject  of  actual  reconstruction  was  Tennessee.  At 
the  close  of  February,  1862,  the  Confederates  aban 
doned  Nashville,  the  capital  of  the  state,  and  on  the 
twenty-fifth,  the  federal  army  occupied  this  city.  In 
anticipation  of  this  occupation,  Gen.  U.  S.  Grant 
had  issued,  on  the  twenty-second,  an  order  declaring 
that  no  courts  would  be  allowed  to  act  under  state 
authority,  but  that  all  cases  coming  within  reach  of 
the  military  arm  would  be  adjudicated  by  the  author 
ities  which  the  United  States  government  had  estab 
lished.  Martial  law  was  declared  to  extend  over 


318        PRESIDENTIAL  RECONSTRUCTION. 

west  Tennessee,  but  whenever  a  number  of  citizens 
sufficient  to  maintain  law  and  order  over  the  terri 
tory  should  return  to  their  allegiance,  this  military 
restriction  would  be  removed.  The  President  about 
the  same  time  appointed  Andrew  Johnson,  a  former 
governor  of  Tennessee,  and  at  this  moment  holding 
a  seat  as  a  member  of  the  United  States  Senate  from 
this  state,  military  governor,  with  the  rank  of  brig 
adier-general. 

Thus  the  first  of  the  military  governors,  and  the 
first  agent  of  the  President  in  the  work  of  reconstruc 
tion,  was  the  man  who  was  to  succeed  Mr.  Lincoln, 
and  who  was  to  take  up  this  work  as  it  fell  from 
his  hands.  This  nomination  was  confirmed  by  the 
Senate  on  March  fifth,  and  on  the  twelfth  the  new 
official  reached  Nashville,  and  on  the  next  evening 
made  an  address,  which  was  afterwards  printed  and 
circulated  under  the  style  of  "  An  Appeal  to  the  People 
of  Tennessee." 

It  is  to  be  noted  that  the  regular  governor  of  the 
state,  Harris,  being  a  Confederate,  had,  with  his  offi 
cials  and  the  state  archives,  left  the  capital  for  mili 
tary  reasons  and  betaken  himself  to  Memphis,  whither 
he  had  summoned  the  legislature.  This  had  left  the 
parts  of  the  state  which  were  in  the  occupation  of  the 
federal  forces  without  administration  of  state  govern 
ment.  In  his  address  or  appeal,  Johnson  set  forth 
these  facts,. .asserting  that  the  state  government  had 
disappeared ^ that  the  executive  had  abdicated;  that 
the  legislature  had  dissolved  ;  and  that  the  judiciary 
was  in  abeyance,  alid  that  the  national  government 
was  at  this  moment  attempting  to  discharge  its  obli 
gations  to  guarantee  to  every  state  a  republican  form 


RESTORATION  NOT  RECONSTRUCTION.     319 

of  government.  The  reason  and  purpose  of  his  ap- 
poiutment  as  military  governor  should  be  given  in 
his  own  words,  which  are  as  follows :  "  I  have  been 
appointed  military  governor  for  the  time  being,  to 
preserve  the  public  property  of  the  United  States, 
to  give  the  protection  of  law  actively  enforced  to  her 
citizens,  and  as  speedily  as  may  be,  to  restore  her 
government  to  the  same  condition  as  before  the 
existing  rebellion." 

The  great  prominence  attained  afterwards  by  John 
son  as  "  the  Reconstruction  President,"  and  the  fact 
that  he  himself  was  the  very  first  man  commissioned 
to  undertake  the  work  of  rehabilitation,  lends  to  his 
words  weight  that  otherwise  they  might  not  have.  It 
is  the  future  of  reconstruction  (now  past  history) 
that  reflects  so  great  importance  upon  every  word  and 
action  of  the  military  governor  of  Tennessee.  The 
fact,  then,  that  he  asserted  that  he  had  been  appointed 
on  account  of  "  the  absence  of  the  regular  and  estab 
lished  state  authorities"  and  for  the  purpose  of 
"  restoring  her  government  to  the  same  condition  as 
before  the  existing  rebellion"  and  that  his  appoint 
ment  was  a  "  military  "  one,  becomes  of  the  highest 
importance  when  uttered  by  one  who,  at  a  later  day, 
when  he  fell  heir  to  a  system  of  reconstruction  of 
which  his  own  appointment  was  the  inception,  ap 
pointed  provisional  governors,  because  the  rebellious 
states  "  had  been  deprived  of  all  civil  government," 
and  "  for  the  purpose  of  enabling  the  loyal  people  of 
said  state  to  organize  a  state  government."  For  it 
shows  that  at  the  time  of  his  appointment  as  gov 
ernor  the  restoration  of  the  ancient  government  was 
still  the  object  of  President  Lincoln's  exertion,  and 


320       PRESIDENTIAL  RECONSTRUCTION. 

that  Johnson's  military  character  was  the  use  of  the 
military  power  merely  as  an  instrument  to  attain  this 
end.  That  his  appointment  was  made  with  the  con 
sent  of  the  Senate  first  being  had,  proves  conclusively 
that  President  Lincoln,  as  late  as  the  spring  of  1862, 
had  not  reached  the  point  of  appropriating  to  his  sole 
use  the  powers  involved  in  the  work  of  reconstruction. 
Indeed,  the  natural  inference  is  that  no  "Presiden 
tial  Plan  "  of  reconstruction  was  yet  present  in  the 
mind  of  the  President,  that  "restoration"  of  the  old 
state  governments  was  still  the  primary  object  of 
federal  endeavor,  and  that  the  part  of  the  executive 
branch  of  the  government  was  merely  to  perform  such 
duties  as  would  enable  the  restored  sections  to  send 
senators  and  representatives  to  Washington,  where  the 
rest  of  restoration  would  be  effected  or  denied  by  Con 
gress,  according  to  its  decision  upon  the  admission  or 
rejection  of  these  members  to  their  respective  houses. 
The  vacated  offices  were  filled  by  his  appointment 
for  the  reason  that  "  otherwise  anarchy  would  pre 
vail."  i 

1  It  may  be  well  to  reproduce  here  Johnson's  views  of  the  rela 
tions  in  which  the  individual  citizens  of  the  state  stood  towards  the 
federal  government :  "  Those,"  said  he,  "  who  through  the  dark  and 
weary  night  of  the  rebellion  have  maintained  their  allegiance  to  the 
federal  government  will  be  honored.  The  erring  and  misguided 
will  be  welcomed  on  their  return.  And  while  it  may  become  neces 
sary,  in  vindicating  the  violated  majesty  of  the  law,  and  in  reassert 
ing  its  imperial  sway,  to  punish  intelligent  and  conscious  treason  in 
high  places,  no  merely  retaliatory  or  vindictive  policy  will  be  adopted. 
To  those,  especially,  who  in  a  private,  unofficial  capacity  have  as 
sumed  an  attitude  of  hostility  to  the  government,  a  full  and  complete 
amnesty  for  all  past  acts  and  declarations  is  offered,  upon  the  one 
condition  of  their  again  yielding  themselves  peaceful  citizens  to  the 
just  supremacy  of  the  laws.  This  I  advise  them  to  do  for  their  own 
good,  and  for  the  peace  and  welfare  of  our  beloved  state." 


TENNESSEE  NEVER   OUT   OF  THE   UNION.    321 

As  the  state  of  Tennessee  was  then  the  theatre 
of  conflict  between  great  armies,  the  territory  under 
the  protection  of  one  flag  or  the  other  was  constantly 
changing  its  dimensions.  The  conditions  of  active 
warfare  did  not  permit  the  inhabitants  freedom  of 
action  sufficient  to  warrant  the  reestablishment  of  civil 
government,  at  least  on  the  part  of  the  federals,  and 
the  military  governorship  was  not  productive  of  the 
benefits  hoped  for  at  Washington.  That  the  states 
in  rebellion  were  regarded  as  being  still  in  the  Union, 
and  that  their  ancient  governments  were  objects  of 
restoration,  is  manifest  from  a  speech  made  by  Gov 
ernor  Johnson  as  late  as  September,  1863,  in  which 
he  said :  "  Tennessee  is  not  out  of  the  Union,  never 
has  been,  and  never  will  be  out.  The  bonds  of  the 
Constitution  and  the  federal  power  will  always  pre 
vent  that.  This  government  is  perpetual ;  provision 
is  made  for  reforming  the  government  and  amending 
the  Constitution,  and  admitting  states  into  the  Union  ; 
not  for  letting  them  out  of  it.  ...  The  United 
States  sends  a'n  agent  or  a  military  governor,  which 
ever  you  please  to  call  him,  to  aid  you  in  restoring 
your  government.  Whenever  you  desire,  in  good 
faith,  to  restore  civil  authority,  you  can  do-  so,  and  a 
proclamation  for  an  election  will  be  issued  as  speedily 
as  it  is  practicable  to  hold  one.  One  by  one  all  the 
agencies  of  your  state  government  will  be  set  in  mo 
tion.  A  legislature  will  be  elected,  judges  will  be 
appointed  temporarily,  until  you  can  elect  them  at  the 
polls  ;  and  so  of  sheriffs,  county-court  judges,  justices, 
and  other  officers,  until  the  way  is  fairly  open  for  the 
people,  and  all  the  parts  of  civil  government  resume 
their  ordinary  functions.  This  is  no  nice,  intricate. 


322        PRESIDENTIAL   RECONSTRUCTION. 

metaphysical  question.  It  is  a  plain,  common  sense 
matter,  and  there  is  nothing  in  the  way  but  obstinacy." 
It  was  not  until  1864,  after  the  Amnesty  Proclama 
tion  of  the  President  had  been  issued,  that  the  state 
was  sufficiently  free  from  hostilities  to  warrant  general 
efforts  towards  restoration,  and  at  first  these  efforts 
were  altogether  fruitless.  In  the  mean  time,  the  mili 
tary  governor  never  ceased  to  give  assurance  of  his 
readiness  to  appoint  officers  and  establish  tribunals 
whenever  the  people  showed  a  desire  for  civil  govern 
ment  and  were  willing  to  sustain  his  appointments. 
At  last  the  State  Executive  Committee  of  the  Kepub- 
lican  party  issued  a  call  to  the  people  of  Tennessee 
for  a  convention  "to  meet  in  Nashville,  January  9, 
1865,  to  nominate  a  ticket  which,  it  was  generally 
understood,  would  consist  of  the  names  of  persons  to 
compose  another  and  later  convention.  This  second 
body  was  to  revise  the  state  constitution  and  submit  it 
to  the  people  for  adoption  or  rejection.  The  conven 
tion  met  on  January  ninth,  but  instead  of  cutting  out 
work  for  a  second  convention,  took  the  whole  thing 
upon  itself,  and  submitted  to  the  people  amendments 
abolishing  slavery,  and  prohibiting  the  legislature  from 
making  any  law  recognizing  the  right  of  property  in 
man.  A  schedule  was  likewise  adopted  and  submitted 
to  the  people,  annulling,  among  other  things,  the  ordi 
nance  of  secession  and  all  laws  and  ordinances  of  the 
seceded  state  government,  and  confirming  the  appoint 
ments  of  Governor  Johnson.  If  these  amendments 
and  alterations  should  be  adopted  and  ratified  by  a 
popular  majority  on  February  twenty-second,  then  an 
election  for  governor  and  members  of  the  legislature 
was  to  be  held  on  March  fourth,  upon  the  basis  pre- 


NORTH  CAROLINA.  323 

scribed  by  the  old  act  of  1852,  and  the  legislature 
was  to  meet  on  April  third.  The  convention  nomi 
nated  W.  G.  Brownlow  for  governor,  and  persons  for 
senators  and  representatives  in  the  legislature,  as 
well  as  those  who  were  to  hold  the- elections,  and  then 
adjourned.  On  February  twenty-second,  the  proceed 
ings  of  the  convention  were  ratified  by  the  people, 
and  the  military  governor  made  due  proclamation  of 
this  fact.  Brownlow  and  the  members  of  the  legis 
lature  nominated  by  the  convention  were  chosen  at 
the  ensuing  election  without  opposition. 

On  the  third  of  April,  the  legislature  met  at  Nash 
ville,  and  on  the  fifth,  ratified  the  pending  amend 
ment  to  the  Constitution  of  the  United  States.  In 
the  mean  time,  on  the  fourth  of  March,  Andrew  John 
son  had  taken  the  oath  of  office,  and  had  become  Vice- 
President  of  the  United  States. 

The  federal  forces  having  obtained  a  footing  in 
North  Carolina  sufficient,  in  the  view  of  President 
Lincoln,  to  warrant  an  attempt  to  set  up  a  govern 
ment  under  that  of  the  United  States,  Edward  Stan 
ley  was  appointed  military  governor  of  this  state,  and 
instructions  issued  to  him  from  the  Secretary  of  War,1 
similar  to  those  which  had  been  given  to  Governor 
Johnson,  of  Tennessee.  In  these  instructions  it  was 
said,  that  "  the  great  purpose  of  your  appointment  is 
to  reestablish  the  authority  of  the  federal  government 
In"  the  state  of  North  Carolina,  and  to  provide  the 
means  of  maintaining  peace  and  security  to  the  loyal 
inhabitants  of  that  state  until  they  shall  be  able  to 
establish  a  civil  government.  ...  It  is  not  deemed 
1  May  2,  1862. 


324       PRESIDENTIAL  RECONSTRUCTION. 

necessary  to  give  any  specific  instructions,  but  rather 
to  confide  in  your  sound  discretion  to  adopt  such 
measures  as  circumstances  may  demand.  You  may 
rely  upon  the  perfect  confidence  and  full  support  of 
this  department  in  the  performance  of  your  duties." 
Although  the  people  flocked  into  the  lines  to  hear 
what  the  governor  had  to  say  to  them  in  a  public 
address,1  they  were  little  persuaded  by  his  appeals  to 
them  to  resume  their  allegiance,  and  the  war  came  to 
an  end  without  any  progress  towards  the  restoration 
of  this  state  being  effected. 

In  Arkansas,  John  S.  Phelps,  of  Missouri,  was 
appointed  military  governor,  in  1862,  but  it  was  not 
until  January  8,  1864,  that,  under  the  encourage 
ment  given  by  the  Amnesty  Proclamation,  a  con 
vention  met  to  revise  the  state  constitution.  The 
amended  constitution,  prohibiting  slavery,  was  ordered 
by  the  convention  to  be  submitted  to  the  people  on 
March  fourteenth.  Isaac  Murphy  was  appointed  pro 
visional  governor,  and  with  other  officials  was  inducted 
into  office  on  January  twenty-second.  On  January 
twentieth,  however,  President  Lincoln,  in  ignorance 
of  the  convention  and  its  proceedings,  on  the  petition 
of  sundry  citizens  of  the  state,  ordered  General  Steele, 
commander  of  that  military  district,  to  hold  an  elec 
tion  on  the  twenty-eighth  of  March,  for  the  election 
of  a  governor.  In  this  order  it  is  distinctly  declared 
"  that  it  be  assumed  at  that  election,  and  thencefor 
ward,  that  the  constitution  and  laws  of  the  state  as 
before  the  rebellion  are  in  full  force,  except  that  the 
constitution  is  so  modified  as  to  declare  that  there 

1  June  17. 


ARKANSAS.  325 

shall  be  neither  slavery  nor  involuntary  servitude, 
.  .  .  that,  in  all  other  respects,  said  election  may  be 
conducted  according  to  said  modified  constitution  and 
laws." 

From  this  it  will  appear  that  even  after  the  Am 
nesty  Proclamation,  President  Lincoln  maintained  the 
same  view  of  the  state  of  Arkansas  that  he  had  done 
of  Tennessee  in  1862,  viz.  :  that  it  was  the  ancient 
constitution  which  was  to  be  restored.  It  is  true  that 
it  was  to  be  modified,  and  that  a  strict-constructionist 
would  admit  as  little  right  in  him  to  modify  as  to  cre 
ate  a  constitution,  and  that  even  to  modify  would  be  to 
destroy.  But  apart  from  the  constitutionality  or  un- 
constitutionality  of  the  President's  act,  and  consider 
ing  his  view  of  reconstruction  only,  it  is  evident  that, 
so  far  as  Arkansas  was  concerned,  his  plan  recognized 
the  ancient  constitution  as  existing,  and  that  no  other 
was  present  to  his  mind. 

When  President  Lincoln  was  notified  of  the  con 
vention  and  its  work,  he  left  the  matter  to  the  com 
mander  of  the  department,  who  proceeded  to  hold 
the  election,  which  returned  12,177  in  favor  of  the 
amended  constitution  and  226  against  it.  A  governor 
and  other  state  and  county  officers  were  also  elected, 
and  when  the  legislature  assembled,  it  chose  two 
United  States  senators. 

In  1862,  George  F.  Shepley  was  constituted  mili 
tary  governor  of  Louisiana,  with  the  rank  of  brigadier- 
general,  and,  by  order  of  the  President  of  the  United 
States,  a  Provisional  Court,  "  which  shall  be  a  court 
of  record  for  the  state  of  Louisiana,"  was  constituted, 
and  Charles  A.  Peabody,  of  New  York,  was  appointed 


326        PRESIDENTIAL   RECONSTRUCTION. 

to  be  the  judge  to  hold  this  court.  The  jurisdiction 
of  the  Provisional  Court  was  illimitable;  it  compre 
hended  everything  that  any  court  can  take  cognizance 
of,  and,  moreover,  the  judgments  of  this  judge  were 
to  be  final  and  conclusive.  His  commission  was  de 
scribed  succinctly  in  the  order  itself  :  "  A  copy  of 
this  order,  certified  by  the  Secretary  of  War,  and  de 
livered  to  such  judge,  shall  be  deemed  and  held  to  be 
a  sufficient  commission."  The  reason  given  in  this 
order  for  its  appearance  was  that  the  insurrection  had 
temporarily  subverted  and  swept  away  the  institutions 
of  that  state,  including  the  judiciary  and  the  judicial 
authorities  of  the  Union,  so  that  it  had  become  neces 
sary  to  hold  the  state  in  military  occupation. 

The  necessity  of  holding  the  state  in  military  occupa 
tion  can  be  readily  accepted,  when  it  is  recalled  that, 
for  a  long  time  afterward,  the  United  States  could  main 
tain  its  jurisdiction  by  force  of  arms  only,  upon  a  very 
circumscribed  territory,  which,  nine  months  afterward, 
had  become  narrowed  to  the  range  of  the  federal  can- 
iion  in  the  works  at  New  Orleans.  For  nearly  two 
years  after  the  constitution  of  the  commission,  the 
United  States,  outside  of  their  military  lines,  could 
not  serve  a  writ  in  the  whole  state  of  Louisiana. 

In  the  following  year,  notwithstanding  the  disputed 
occupancy  of  the  state  by  armed  forces,  movements 
for  the  reorganization  of  Louisiana  as  a  federal  state 
were  set  on  foot.  In  the  early  summer  of  1863,  a 
"  committee  appointed  by  the  planters  of  the  state  of 
Louisiana  "  appeared  at  Washington,  and  represented 
to  President  Lincoln  that  they  had  been  delegated  to 
seek  of  the  general  government  a  full  recognition  of 
all  the  rights  of  the  state  as  they  existed  previous  to 


LOUISIANA.  327 

the  passage  of  an  act  of  secession,  upon  the  principle  of 
the  existence  of  the  state  constitution  unimpaired,  and 
no  legal  act  having  transpired  that  could  in  any  way 
deprive  them  of  the  advantage  conferred  by  the  con 
stitution  :  that  under  this  constitution  Louisiana  wished 
to  return  to  its  full  allegiance,  in  the  enjoyment  of  all 
rights  and  privileges  exercised  by  the  other  states 
under  the  federal  Constitution.  With  the  view  of 
accomplishing  this  object,  they  requested  the  President, 
as  the  commander-in-chief  of  the  army,  to  direct  the 
military  governor  to  order  an  election  on  the  first 
Monday  of  November,  in  conformity  with  the  constitu 
tion  and  laws  of  the  state,  for  all  state  and  federal 
offices. 

The  President  said  in  response  that,  since  receiving 
their  application-,  reliable  information  had  reached 
him  that  a  respectable  portion  of  the  Louisiana  people 
desired  to  amend  their  state  constitution,  and  that 
they  contemplated  holding  a  convention  for  that  pur 
pose.  This  he  deemed  a  sufficient  reason  for  not 
giving  the  committee  the  authority  they  were  seeking 
to  use  under  the  existing  constitution.  A  s  to  an  elec 
tion  in  November,  there  was  abundant  time,  without 
any  order  or  proclamation  from  him  just  then. 

This  committee  represented  a  party  which  took  the 
position  that  the  state  was  still  a  state  in  the  Union, 
but  one  whose  operation,  so  far  as  the  federal  govern 
ment  was  concerned,  had  been  suspended :  it  is  also 
apparent  that,  whatever  the  views  of  the  President 
on  this  subject,  he  was  not  disposed  to  commit  him 
self  to  a  recognition  either  of  this  principle  or  of  its 
upholders. 

In  fact,  the  application   of  this  committee  to  the 


328         PRESIDENTIAL  RECONSTRUCTION. 

President  was  in  counteraction  of  a  party  which  had 
already  taken  initiatory  steps  towards  reorganization, 
and  which  held  the  contrary  notion,  that  the  constitu 
tion  of  the  state,  the  state  itself,  had  been  subverted 
and  destroyed  by  the  act  of  secession  and  by  the  war, 
and  that  the  construction  of  an  entirely  new  state 
devolved  upon  the  conqueror  of  the  soil.  That  this 
fundamental  notion  of  .reconstruction  was  not  confined 
to  the  Free  State,  or  radical  party,  but  was  entertained 
also  by  high  officials  that  had  been  appointed  by  the 
President,  is  evident  from  the  opinion  which  the  Chief 
Justice,  Peabody,  himself  filed  during  the  following 
year,  1864,  in  the  cases  of  the  United  States  vs.  Rei- 
ter  and  the  United  States  vs.  Louis.1  The  words  of 
the  judge  are  worthy  of  quotation,  and  it  may  be  said 
by  way  of  anticipation  that,  so  far  as  the  relations  of 
the  states  in  rebellion  to  the  federal  government  are 
concerned,  the  decision  of  the  Supreme  Court  of  the 
United  States  is  exactly  contrary.  His  Honor  said: 
"  These  institutions  having  been  formed,  established, 
and  administered  by  the  government  existing  previous 
to  and  at  the  time  of  the  conquest  confessedly  hostile 
to  the  government  of  the  United  States,  were  the  only 
institutions  found  there  at  the  time  the  military 
authority  of  the  United  States  was  by  force  of  its 
arms  established  there.  By  the  conquest  of  the  coun 
try,  in  this  case  as  in  others,  the  previously  existing 
government  and  the  power  by  which  it  was  adminis 
tered  were  subverted  and  swept  away,  and  those  of 
the  conquering  power  were  substituted  in  their  places. 

1  These  two  cases,  which  involved  the  same  question  of  the  juris 
diction  of  the  court,  were  considered  together.  McPherson's  Polit. 
Hist.  Rebellion. 


CONQUEST.  329 

This  is  the  necessary  consequence  of  a  conquest  of  the 
country,  —  a  transfer  of  the  control,  government,  and 
sovereignty  of  it  from  one  party  to  another.  They  may 
be  transferred  to  and  adopted  by  the  new  governing 
power,  and  may  be  used  and  operated  by  it.  However 
there  may  be  retained  in  use  by  the  new  governing 
power  some  of  the  features  or  institutions  of  the  gov 
ernment  which  has  been  supplanted,  it  is  nevertheless 
wholly  another  government,  and  derives  its  life  and 
all  its  vital  qualities  from  a  new  source,  —  the  new 
sovereignty  installed  by  the  conquest.  A  conquest 
necessarily  operates  the  extinguishment  of  the  power 
of  the  party  conquered  in  the  country  which  is  the 
subject  of  conquest,  and  the  establishment  there  of 
the  power  of  the  conqueror.  Without  this  there  is 
no  conquest  of  a  country,  and  there  can  he  none. 

"  When  the  power  previously  dominant  in  a  coun 
try  has  been  extinguished  by  that  of  another  party, 
and  rendered  incapable  of  governing  it  further,  and  a 
new  one  has  been  established  in  its  stead,  it  is  both 
the  right  and  the  duty  of  the  party  thus  coming  into 
power  to  see  to  it  that  a  government  wholesome  and 
salutary  shall  be  established  and  administered ;  and 
as  in  such  a  case  there  is  only  one  power,  that  of  the 
new  party  succeeding,  capable  of  giving  and  adminis 
tering  the  government,  it  follows  that  it  is  the  duty  as 
well  as  the  right  of  that  power  to  do  it. 

"  So  the  government  of  the  United  States  having 
conquered  and  expelled  from  the  territory  of  coun 
try  theretofore  known  as  the  state  of  Louisiana  the 
power  by  which  the  government  of  it  had  been  there 
tofore  administered,  and  having  established  there  its 
own  power,  was  bound  by  the  laws  of  war,  as  well  as 


330        PRESIDENTIAL  RECONSTRUCTION. 

the  dictates  of  humanity,  to  give  to  the  territory  thus 
bereft  a  government  in  the  place  and  stead  of  the 
one  deposed  or  overthrown  :  such  an  one  as  should 
reasonably  secure  the  safety  and  welcome  of  the  peo 
ple  thus  reduced  to  subjection,  in  some  manner,  not 
inconsistent,  to  be  sure,  with  the  proper  interests  of 
the  governing  power,  and  the  maintenance  of  it  in  its 
supremacy  there." 

Thus  far  the  Chief  Justice  of  the  Provisional 
Court :  a  court  which,  to  use  its  own  words,  had  "  not 
its  origin  or  foundation  in  any  constitutional  or  legis 
lative  enactment,  —  was  not  the  creature  of  any  regu 
larly  organized  constitutional  or  legislative  body." 
As  the  President  had  made  the  judgment  of  this 
court  final  and  conclusive,  he  must  have  done  so  in 
the  confidence  that  not  only  would  it  administer  im 
mutable  justice,  but  that  it  would  reflect  his  ideas 
upon  the  subject  of  reconstruction :  for  otherwise,  its 
judgments  would  obstruct  the  progress  of  his  plan, 
and  it  is  incredible  that  he  should  himself  raise  ob 
structions  to  his  own  work.  Nevertheless,  in  senti 
ment,  as  well  as  in  bad  English,  this  judicial  opinion 
smacks  of  Thaddeus  Stevens',  speech  on  the  admis 
sion  of  West  Virginia,  and  of  others  of  his  harangues. 
These  views  are  clear  and  simple :  the  preexisting 
government  had  been  "  subverted  and  swept  away," 
and  no  matter  how  much  some  of  its  features  might 
be  drawn  upon  in  order  to  constitute  the  new  govern 
ment,  which  it  was  the  duty  of  the  conqueror  to  be 
stow,  this  new,  "  wholesome  and  salutary  government  " 
was  "  wholly  another  government." 

In  Louisiana,  most  of  the  territory  was  in  posses 
sion  of  the  enemy,  and  the  old  and  established  gov- 


FREE  STATE   COMMITTEE.  331 

eminent  of  the  state  was  entirely  so.  The-  conditions 
were  not  favorable  to  a  general  expression  of  the 
people  in  behalf  of  change  in  the  organic  law,  and 
even  if  such  an  expression  could  be  obtained,  it  would 
be  impossible  for  latter-day  organizers  to  take  the 
first  step  essential  to  the  establishment  of  a  new  state, 
namely,  to  oust  the  old  government.  The  citizens 
were  in  the  confederate  army,  the  confederate  armies 
held  the  territory,  and  the  confederate  officials  had 
possession  of  the  government.  Viewed  from  the  fed 
eral  standpoint,  the  state  of  Louisiana  presented  a 
very  restricted  theatre  of  politics  :  "  The  city  of  New 
Orleans,"  said  General  Banks  in  the  spring  of  1864, 
"  is  really  the  state  of  Louisiana ; "  and  it  seems  as  if 
Chief  Justice  Peabody  would  have  exhibited  greater 
deference  to  the  reality  of  the  situation  if  he  had  for 
borne  to  claim  jurisdiction  011  the  ground  that  the 
state  of  Louisiana  had  been  conquered,  or  that  the 
preexisting  government  (which  was  then  in  operation  at 
Shreveport)  had  been  "  subverted  and  swept  away." 

There  being  no  constitutional  way  open  to  a  general 
expression  of  the  people  respecting  a  change  of  gov 
ernment,  it  was  necessary  for  unofficial  persons  to 
move  in  the  matter  and  to  adopt  extraordinary  means. 
We  have  seen  that  one  way  was  a  delegation  "  of 
planters  "  to  present  themselves  to  the  President,  and 
it  has  been  remarked  already  that  this  movement  was 
clone  in  order  to  counteract  another  then  on  foot. 
This  primary  movement  was  one  undertaken  by  the 
"  Free  State  General  Committee,"  which  was  a  com 
mittee  representing  the  different  Union  associations 
of  the  city  of  New  Orleans  and  the  adjoining  parish 
of  Jefferson.  This  committee,  of  which  Thomas  J. 
Durant  was  chairman,  submitted  its  plans  to  the  Mili- 


332        PRESIDENTIAL   RECONSTRUCTION. 

tary  Governor,  Shepley,  who  approved  them,  and  who 
agreed  to  order  a  registration  of  voters,  which,  under 
the  laws  in  force  previous  to  the  secession  of  the  state, 
was  exacted  in  New  Orleans  only.  But  this  registra 
tion  was  to  have  no  reference  to  old  laws :  it  was  to 
be  upon  a  new  system  requiring  an  oath  of  allegiance, 
and  it  was  to  extend  into  the  country  parishes.  The 
governor  kept  his  word  and  ordered  the  registration, 
which  was  suspended,  however,  by  a  power  the  Execu 
tive  had  not  consulted,  the  enemy. 

The  principle  at  issue  between  the  two  parties,  the 
"  planters"  or  conservatives,  and  the  Free  State  men 
or  radicals,  can  easily  be  guessed  :  It  was  whether  the 
ancient  state  government  was  the  true  and  present 
government,  or  no.  If  it  were,  then  the  constitution 
of  1852  was  still  in  force,  because  the  ordinance  of 
secession  and  the  constitution  of  1861,  presented  by 
the  confederate  convention,  were  void :  if  it  were  not, 
then  the  constitution  of  1852,  with  its  amendments 
of  1861,  had  been  overthrown  by  the  rebellion  of  the 
people  of  the  state,  and  the  subsequent  "  conquest " 
had  not  restored  the  ancient  political  institutions. 
The  war  "  has  converted  into  dust  and  ashes  all  the 
constitutions  which  Louisiana  has  ever  made,"  said  a 
radical  editor,  who  expressed  the  feelings  of  his  party 
by  declaring  that  the  war  was  nothing  but  a  conflict 
of  the  ideas  of  liberty  and  slavery,  that  there  would 
be  neither  progress  nor  regress  until  this  conflict  was 
settled,  and  that  a  convention  should  be  called  as  soon 
as  possible,  to  declare  that  Louisiana  then  was  and 
forever  would  be  a  free  state. 

The  validity  of  the  steps  taken  has  been  greatly 
disputed,  and  many  of  them  are  clouded  with  doubt. 
There  was  much  crimination  and  recrimination.  The 


THE  PRESIDENT  RECONSTRUCTS.        333 

Free  State  men  fell  out  with  the  President.  They 
asserted  that  when  General  Shepley  took  their  plan 
to  Washington,  it  had  been  approved  in  a  cabinet 
meeting,  accepted  as  the  plan  upon  which  the  Execu 
tive  was  to  act,  and  that  an  order  had  actually  issued 
from  the  War  Department  to  the  General,  as  Mili 
tary  Governor,  to  carry  the  scheme  into  effect.  This 
they  declared  had  occurred  in  August,  and  that  not 
only  toward  the  end  of  this  month  the  President  had 
written  to  General  Banks  approving  of  the  registra 
tion  and  expressing  the  hope  that  the  work  of  the 
convention  would  be  finished  in  time  to  hold  the  elec 
tions  before  the  next  session  of  Congress,  but  that  in 
October  he  had  complained  that  matters  were  going 
too  slow,  and  that,  in  view  of  the  military  situation  in 
Louisiana,  he  would  recognize  a  state  government 
organized  by  any  part  of  the  population  under  federal 
control.  Nothing,  however,  was  done ;  no  general 
election  was  held,  though  it  was  asserted  that  a  few 
parishes  had  voted,  and  persons  claiming  to  have  been 
elected  members  of  Congress  actually  appeared  at 
Washington  :  but  they  were- rejected. 

The  registration  had  proceeded  from  time  to  tim^e, 
when,  to  the  consternation  of  the  Free  State  party,  the 
President  suddenly  took  the  matter  of  reconstruction 
in  Louisiana  entirely  into  his  own  hands.  The  affilia 
tion  of  these  radicals  with  the  radical  faction  in  Con 
gress,  whose  alienation  from  the  President  had  now 
become  a  matter  of  notoriety,  would  have  been  reason 
sufficient  for  the  President's  action  ;  there  was,  how 
ever,  an  all-controlling  one  in  the  fact  that  he  had  re 
cently  issued  the  Amnesty  Proclamation,  and  by  this 
Proclamation  had  taken  upon  himself  the  work  of  re 
construction  wherever  practicable. 


CHAPTER  XVII. 

ENFORCEMENT     OF     THE     PRESIDENTIAL    PLAN     OF 
RECONSTRUCTION CONTINUED. 

The  reconstruction  of  Louisiana  continued. 

ON  the  eighth  of  January,  1864,  General  Banks, 
commander  of  this  department,  announced  that  he 
should  issue  a  proclamation  ordering  an  election  of 
state  officers ;  and  in  spite  of  appeals  to  him  to  per 
mit  the  Free  State  men  to  go  on  with  their  convention, 
he  did  so,  on  the  eleventh  of  the  same  month.  This 
proclamation,  which  has  been  applauded  and  excori 
ated  by  Congress,  was  addressed  to  the  people  of  Lou 
isiana,  and  set  forth  that,  in  pursuance  of  authority 
vested  in  him,  the  commander  of  the  department, 
by  the  President  of  the  United  States,  and  being 
assured  that  more  than*  one  tenth  of  the  voters  had 
taken  the  oath  of  allegiance,  he  invited  the  loyal  citi 
zens  of  the  state  qualified  to  vote,  to  assemble  on  the 
twenty-second  of  February  and  elect  a  governor  and 
other  state,  officers,  who,  for  the  time  being,  should 
constitute  the  civil  government  of  the  state,  under  the 
constitution  and  laws  of  Louisiana,  except  so  much 
as  relate  to  slavery,  "  which  being  inconsistent  with 
the  present  condition  of  public  affairs,  and  plainly  in 
applicable  to  any  class  of  persons  now  existing  within 
its  limits,  must  be  suspended,  and  they  are  thereupon 
and  hereby  declared  to  be  inoperative  and  void."  The 
oath  of  allegiance  prescribed  by  the  President's  Am- 


LAW  MEANS  MARTIAL  LAW.  335 

nesty  Proclamation,  with  the  condition  affixed  to  the 
election  franchise  by  the  constitution  of  Louisiana 
(that  is  to  say,  that  those  entitled  to  this  franchise 
should  be  white),  would  constitute  the  qualifications 
of  voters.  The  registration,  so  far  as  it  was  not  in 
consistent  with  the  proclamations  or  other  orders  of 
the  President,  was  confirmed,  and  an  election  of  dele 
gates  to  a  convention  for  the  revision  of  the  constitu 
tion,  to  be  held  on  the  first  Monday  of  April,  1864, 
was  announced,  and  it  was  stated  that  arrangements 
would  be  made  for  the  early  election  of  members  of 
Congress  for  the  state.  An  assertion  then  followed, 
which,  however  true  the  fact  it  contained  might  be, 
shocked  the  conservative  sentiment  of  the  North,  and 
which,  when  the  radicals  in  Congress  espoused  the 
cause  of  the  Free  State  men,  served  as  a  text  for  many 
a  radical  denunciation.  Why  this  assertion  should 
have  stirred  the  feeling  of  the  people  so  much  can  be 
accounted  for  only  by  the  well-known  quality  in  hu 
man  nature,  which  causes  men  to  be  shocked  by  the 
expression  of  a  truth,  though  they  have  become  per 
fectly  reconciled  to  the  truth  itself.  Everybody, 
north  and  south,  knew  perfectly  well  that  the  federal 
possession  of  any  part  of  Louisiana  was  purely  a 
military  one  ;  they  knew  that  any  attempt  to  organize 
a  government  must  be  absolutely  dependent  upon  fed 
eral  bayonets  for  support.  In  those  days  it  took  the 
people  very  little  while  to  become  familiar  with  the 
fact  that  when  the  federal  government  obtained  a 
footing  on  southern  territory,  it  kept  it  at  the  cost  of 
military  vigilance  and  military  law  ;  yet  when  General 
Banks  abrogated  so  much  of  the  constitution  and 
laws  of  a  sovereign  state  as  seemed  good  to  him,  and 


336       PRESIDENTIAL  RECONSTRUCTION. 

followed  up  this  iconoclasm  with  the  blunt  assertion 
that  "  the  fundamental  law  of  the  state  is  martial 
law,"  indignation  burst  out  everywhere  in  the  North, 
except  at  the  White  House,  and  among  the  adherents 
of  the  President.  To  say,  however,  that  this  indigna 
tion  was  general  is  to  say  too  much.  Outside  of  the 
Democratic  party,  Mr.  Lincoln  had  the  confidence  of 
the  middle  and  lower  classes :  there  was  his  strength, 
and  from  these  classes  little  or  nothing  was  heard  in 
protestation.  The  fact  is,  that  these  classes  hardly 
knew  what  was  going  on  in  such  a  far-away  place 
as  a  gulf  state,  and  if  they  did,  they  had  no  appre 
ciation  of  an  event  so  significant  as  the  subversion 
of  a  state  government  and  the  erection  of  another 
on  its  ruins  by  military  force  :  throughout  the  Re 
publican  party,  on  the  contrary,  the  avowal  that  the 
fundamental  law  of  the  state  was  martial  law  was  ac 
cepted  without  cavil.  The  radical  faction  in  Con 
gress  had  no  popular  following  outside  of  their  scat 
tered  districts,  the  Democrats  were  not  hearkened  to, 
and  thus  the  mass  of  the  people  comprised  those 
whose  knowledge  of  constitutional  procedure  was  in 
dicated  by  the  expression,  "  Lincoln  will  do  what  is 
right."  But  it  was  quite  different  in  Congress. 
There  the  conservative  Republican  redoubled  his  ef 
forts  to  wrest  the  power  of  reconstruction  from  the 
President's  grasp  :  there  the  Radical  sunk  the  fact 
that  the  acts  of  the  conqueror  were  in  consonance 
with  his  own  teachings,  in  the  exasperating  one  that 
the  negro  was  not  made  a  citizen,  and  reviled  the 
President :  and  there  the  Democrat  pointed  to  this 
order  of  Banks  as  a  realization  of  his  oft-told  pro 
phecies. 


tf  A 

|  tJNIVEBSTTT  j 

^W    f^  \  ^~ss 

' 
KING  STORK.  337 

As  for  the  Free  State  men  in  Louisiana,  they  cried 
aloud  in  the  bitterness  of  their  disappointment,  and 
told  some  truths  about  Banks  and  his  order.  They 
protested  that,  in  asserting  the  supremacy  of  martial 
law,  this  general  had  declared  it  to  be  superior  to  the 
Constitution,  and  that  he  could  amend  this  instru 
ment  when  and  how  he  pleased ;  that  the  slavery  laws 
which  he  had  rendered  inoperative  had  not  been 
touched  by  the  President,  and  that  his  assumptions  of 
power  were  dangerous  to  the  liberties  of  the  people 
and  to  republican  government. 

When  the  election  was  held  on  February  22,  1864, 
and  Michael  Hahn,  the  government  nominee,  had 
been  returned  Governor  by  an  overwhelming  major 
ity,  the  Free  State  men  declared  that  the  result  of 
the  election  was  merely  the  registration  of  a  military 
edict,  and  was  worthy  of  no  respect  from  the  repre 
sentatives  and  Executive  of  the  nation  ;  that  no  state 
government  had  been  created  by  this  election,  nor  had 
one  been  erected  in  conformity  with  the  Amnesty 
Proclamation.  They  set  forth  these  views  at  length 
in  a  protest,  which  concluded  as  follows :  "  The  com 
manding  general  says  that  he  will  order  the  election 
of  members  of  a  constitutional  convention,  and  that 
he  will,  by  a  subsequent  order,  fix  the  basis  of  repre 
sentation,  the  number  of  delegates,  and  the  details  of 
the  election.  This  will  put  the  whole  matter  under 
military  control,  and  the  experience  of  the  last  election 
shows  that  only  such  a  convention  can  be  had  as  the 
overshadowing  influence  of  the  military  authority  will 
permit.  Under  an  election  thus  ordered,  and  a  con 
stitution  thus  established,  a  republican  form  of  govern 
ment  cannot  be  formed.  It  is  simply  a  fraud  to  call 


338        PRESIDENTIAL  RECONSTRUCTION. 

it  the  reestablishment  of  a  state  government.  In 
these  circumstances,  the  only  course  left  to  the  truly 
loyal  citizens  of  Louisiana  is  to  protest  against  the 
recognition  of  this  pretended  government,  and  to  ap 
peal  to  the  calm  judgment  of  the  nation  to  procure 
such  action  from  Congress  as  will  forbid  military  com 
manders  to  usurp  the  powers  which  belong  to  Congress 
alone,  or  to  the  loyal  people  of  Louisiana."  It  will 
not  escape  the  notice  of  the  reader  that  this  lamenta 
tion  emanated  from  the  party  which  in  the  beginning 
of  its  attempts  to  form  a  civil  government  had  invoked 
the  help  of  King  Stork. 

On  February  3,  1864,  Banks  issued  his  general 
regulations  concerning  plantation  labor,  and  on  Feb 
ruary  twenty-second,  the  election,  as  has  been  seen, 
was  held.  The  inauguration  of  Governor  Hahn  took 
place  on  March  fourth,  and  on  the  fifteenth,  the 
following  letter  was  addressed  to  him  from  Washing 
ton  ;  it  is  brief  and  emphatic  :  "  Until  further  orders, 
you  are  hereby  invested  with  the  powers  exercised 
hitherto  by  the  Military  Governor  of  Louisiana. 
Yours  truly,  Abraham  Lincoln."  The  President 
seems  to  have  taken  upon  himself  to  make  good  the 
assertion  of  the  Free  State  radicals,  that  "  the  result 
of  the  election  was  merely  the  registration  of  a  mil 
itary  edict." 

General  Banks  having  issued  an  order,  on  March 
eleventh,  for  an  election  of  delegates  to  a  convention 
to  be  held  "  for  the  revision  and  amendment  of  the 
constitution  of  Louisiana,"  Governor  Hahn,  on  the 
sixteenth,  made  proclamation  to  the  sheriffs,  and  the 
election  was  had  on  the  twenty-eighth.  It  assembled 
on  the  sixth  of  April,  and  after  a  session  of  seventy- 


REORGANIZATION.  339 

eight  days,  adjourned  on  July  twenty-fifth;  where 
upon  the  governor  at  once  issued  a  proclamation, 
appointing  September  fifth  as  the  day  on  which  the 
vote  of  the  people  should  be  taken  upon  the  adoption 
or  rejection  of  the  constitution  which  had  been  sub 
mitted  by  the  convention.  This  constitution  ordained 
the  emancipation  of  the  slaves,  and  prohibited  prop 
erty  in  man  forever.  It  made  all  men  equal  before 
the  law,  but  did  not  give  the  negro  the  elective  fran 
chise.  This  constitution  was  adopted  by  a  vote  of 
6836  to  1566.  In  the  city  of  New  Orleans,  the  vote 
stood  4664  to  789.  The  government  was  organized 
on  the  third  of  October. 

At  this  election  five  congressmen  were  chosen,1  as 
well  as  members  of  the  legislature.  The  members 
of  the  legislature  were  almost  all  Free  State  men,  and 
this  legislature  subsequently  chose  seven  electors  of 
President  and  Vice-President.  How  restricted  in  ter 
ritory  the  jurisdiction  of  these  officials  and  these 
bodies  was,  may  be  inferred  from  the  fact  that  more 
than  three  fourths  of  the  state  was  in  possession  of  the 
enemy  :  and  how  slow  the  task  of  reconstruction,  and 
how  slight  the  deference  that  was  paid  to  this  "  civil 
government,"  is  apparent  from  an  order  of  General 
Hurlbut,  commander  of  the  district.  In  this  order 
he  makes  use  of  the  following  language :  "  Upon  the 

1  In  1862,  two  congressmen,  Messrs.  Hahn  and  Flanders,  were 
elected  from  the  New  Orleans  districts,  according1  to  instructions  for 
an  election  from  President  Lincoln  to  the  general  commanding-. 
These  persons  were  admitted  to  their  seats  in  the  House  of  Represen 
tatives  by  a  vote  taken  February  9,  1863.  They  were  elected  for  un- 
expired  terms  which  expired  on  the  4th  of  March  ensuing-.  At  the 
next  session  of  Congress  two  others  appeared,  but  were  not  recognized 
as  members^  after  the  organization  of  the  House. 


340       PRESIDENTIAL  RECONSTRUCTION. 

official  report  of  the  Attorney-General  of  the  state 
of  Louisiana,  that  the  ordinary  courts  of  justice  are 
insufficient  to  punish  the  offenders  named  by  him,  and 
in  consideration  that  the  state  government  and  courts 
of  Louisiana  owe  their  present  existence  to  military 
authority,  it  is  ordered  that  .  .  .  those  arrested  for 
peculation  and  other  offences  be  sent  for  trial  before 
the  Military  Commission  now  in  session  in  the  city 
of  New  Orleans  .  .  .  and  that  the  Attorney-General 
of  the  state  of  Louisiana  be  admitted  to  appear  be 
fore  said  commissioner  as  public  prosecutor."  Thus, 
on  December  27,  1864,  the  date  of  this  order,  the 
assertion  of  the  radicals,  that  u  under  an  election 
thus  ordered,  and  a  constitution  thus  established,  a 
republican  form  of  government  cannot  be  formed," 
was  verified  to  the  letter. 

The  five  members  of  Congress  elected  on  the  fifth 
of  September,  1864,  duly  presented  themselves  at 
Washington  for  admission  to  the  House  of  Kepre- 
sentatives ;  their  credentials  were  referred  to  the 
committee  of  elections,  accompanied  by  a  petition 
remonstrating  against  the  reception  of  these  men  as 
members.1  There  was  also  a  remonstrance  against 
the  representation  of  Louisiana  in  the  Electoral 
College,  for  the  choice  of  President  and  Yice-Presi- 
dent  of  the  United  States.  The  legislature  had  like 
wise  elected  two  senators  of  the  United  States,  who 
presented  themselves  at  Washington  but  were  not 
admitted.  As  for  the  five  congressmen,  the  com 
mittee  of  elections  in  the  House  reported  that  their 
election  depended  upon  the  effect  which  the  House 
was  disposed  to  give  to  the  efforts  to  reorganize  a 
1  2d  Sess.  38th  Cong. :  Cong.  Globe,  Part  I.  2. 


A    CONGRESSIONAL  REPORT.  341 

state  government  in  Louisiana ;  that  neither  a  law  of 
the  state  nor  of  the  nation  to  meet  the  case  was 
possible,  and  it  followed  that  the  power  to  restore 
a  lost  state  government  in  Louisiana  existed  nowhere 
unless  in  "the  people,"  the  original  source  of  all 
political  power  in  this  country ;  that  the  people  cannot 
be  required  to  conform  to  any  particular  mode,  for 
that  presupposes  a  power  to  prescribe  outside  of  them 
selves,  which  it  has  been  seen  does  not  exist.  There 
fore,  it  followed  further  that  if  this  work  of  reorgan 
izing  and  reestablishing  a  state  government  was  the 
work  of  the  people,  it  was  the  legitimate  exercise  of 
an  inalienable  and  inherent  right,  and,  if  republican 
in  form,  was  entitled  not  only  to  recognition,  but  also 
to  the  "  guarantee  "  of  the  constitution.  The  com 
mittee  then  inquired  how  far  this  effort  to  restore 
constitutional  government  had  been  the  work  of  the 
people  of  Louisiana,  and  make  this  astonishing  state 
ment  :  that  "  the  evidence  before  the  committee,  and 
all  the  information  they  could  obtain,  satisfied  them 
that  the  movement  which  resulted  in  the  election  of 
state  officers,  the  calling  of  a  convention  to  revise 
and  amend  the  constitution,  the  ratification  of  such  a 
revisal  and  amendment  by  popular  vote,  and  the  sub 
sequent  election,  of  representatives  in  Congress,  was 
not  only  participated  in  by  a  large  majority,  almost 
approaching  to  unanimity,  but  that  the  loyal  people 
constituted  a  majority  of  all  the  people  of  the  state." 
They  also  added  that  the  election  was  held  under  the 
auspices  of  a  new  state  organization  which  had  arisen 
from  the  ruins  of  the  old,  in  as  much  conformity  to 
law  as  the  nature  of  the  case  would  permit. 

The  conclusions  of  the  committee  did  not  meet  the 


342       PRESIDENTIAL  RECONSTRUCTION. 

adoption  which  is  the  good  fortune  of  statements  that 
prove  themselves.  In  fact,  where  they  were  not  re 
ceived  with  indignation,  they  were  held  in  derision. 
In  Louisiana  itself,  the  acting  governor,  Wells,  who 
had  taken  the  helm,  on  Hahn  receiving  an  election 
to  the  United  States  Senate,  issued  a  proclamation 
on  May  3,  1865,  which  reveals  very  clearly  what  he 
thought  of  the  voters  in  these  elections.  He  says 
that  according  to  the  official  statement  of  the  Regis 
ter  of  voters  for  the  city  of  New  Orleans,  nearly  five 
thousand  persons  were  at  that  time  registered  on  the 
books  who  did  not  possess  the  qualifications  required 
by  law  to  become  voters.  He  thereupon  declared  the 
old  books  for  the  city  of  New  Orleans  to  be  closed 
from  that  date,  and  the  registration  of  all  persons 
contained  therein,  as  well  as  all  certificates  issued  by 
virtue  of  the  records  and  conferring  the  right  to  vote, 
to  be  null  and  void;  and  he  ordered  a  new  set  of 
books  to  be  opened,  and  a  new  registration  to  be 
made.  This  brought  down  upon  him  the  censure  of 
General  Banks. 

As  for  the  members  of  Congress  themselves,  incre 
dulity  and  derision  divided  the  honors  when  it  was 
gravely  declared  that  the  applicants  for  admission 
had  been  elected  by  a  large  majority  of  the  people. 
That  the  vote  approached  unanimity  was  apparent : 
but  why  should  it  not  be  so  ?  That  it  constituted  a 
large  majority  was  a  statement,  the  audacity  of  which 
could  be  surpassed  only  by  the  assertion,  made  in  the 
same  breath,  that  "  the  loyal  people  constituted  a  ma 
jority  of  all  the  people  of  the  state."  When  Wells' 
proclamation  was  issued,  the  doubters,  or  rather  the 
scoffers,  received  it  as  proof  of  the  truth  of  their  sus- 


A    TRAVESTY  ON  STATEHOOD.  343 

picions.  The  vote  of  the  whole  city  of  New  Orleans 
on  the  constitution  was  5453,  and  of  these  789  were 
against  and  4664  for  adoption.  The  scoffers  declared 
that  the  4664  was  the  riff-raff  fraudulently  regis 
tered,  and  that  the  discrepancy  of  336  accounted  for 
the  halt,  the  blind,  and  those  who  were  sick  and  in 
jail. 

The  House  took  no  further  action  on  the  matter 
than  to  vote  rather  surlily  a  sum  of  money  from  the 
applicants  sufficient  to  pay  their  expenses  while  in 
Washington  and  on  their  way  home.  "  If  we  make 
such  large  payments  to  men  coming  here  in  this  way, 
we  do  not  know  when  they  will  stop  coming,"  said 
Washburne.  "  I  ask  the  gentleman  to  strike  out  the 
words  '  claimants  for  seats,' "  cried  Thaddeus  Stevens. 
"  I  do  not  want  to  recognize  the  idea  that  anybody  on 
earth  thinks  that  these  men  are  entitled  to  seats."  1 

"  reconstruction "  of  Louisiana  in  1864  was 
the  first  instance  of  the  kind  under  the  plan  set  forth 
in  the  Amnesty  Proclamation ;  and  the  first  fruits  of 
this  plan  were  scanned  with  eager  and  critical  gaze 
throughout  the  Union.  The  conclusion  was  extremely 
disappointing.  The  flagrant  use  of  the  military,  the 
character  of  the  "  loyal  people  of  Louisiana,"  too 
plainly  recognized  as  the  scum  of  New  Orleans,  a  city 
with  the  worst  of  reputations  in  respect  to  the  vicious 
element  that  haunts  all  cities,  the  fraudulent  registra 
tion  T)y  which  this  class  was  turned  into  voters,  the 
unblushing  way  in  which  the  military  commander 
threatened  these  voters  if  they  were  slow  to  execute 
his  will,  the  lightness  of  the  vote  which  showed  that 
the  reputable  classes  had  either  rejected  amnesty  or 

1  Cong.  Globe,  2d  Sess.  38th  Congress,  1395. 


344       PRESIDENTIAL  RECONSTRUCTION. 

had  refused  to  go  to  the  polls,  the  knowledge  that 
what  was  done  in  the  name  of  the  state  was  applicable 
only  to  the  narrow  limits  of  a  single  city,  —  all  this 
was  more  than  disappointing,  it  was  shocking.  Was 
it  for  this  that  the  country  had  condoned  the  use  by 
the  President  of  powers  which  belonged  only  to  the 
people  and  to  the  states  in  Congress  assembled  ?  The 
organization  of  camp-followers  and  of  a  city's  riff 
raff,  the  dubbing  them  with  the  title  of  "  the  truly 
loyal  people,"  the  giving  them  the  name  of  "  citizens," 
and  the  calling  their  institution  of  a  military  despot 
ism  the  "  reconstruction  of  a  sovereign  state,"  was  too 
much.  It  did  not  take  the  keen-witted  people  of  the 
North  long  to  see  this  travesty  on  government  in  its 
true  light,  and  in  spite  of  the  fear  of  suppression,  the 
press  began  to  bristle  with  sarcasm  and  to  jeer  at  this 
scarecrow  of  a  state. 

It  was  not  the  intelligent  few,  however,  who  could 
make  their  voices  heard  with  effect,  nor  was  it  the 
small  minority  of  fearless  journals  that  could  rouse  a 
people  always  ready  to  shift  from  their  shoulders  the 
responsibility  of  being  free  men.  It  was  in  Congress 
that  the  truth  of  the  matter  was  exposed,  and  this 
not  so  much  by  the  denunciation  of  the  opposition,  as 
by  the  quarrelling  and  bickering  of  contending  fac 
tions.  The  truth  about  Louisiana  owed  more  to  the 
quarrels  that  were  going  on  within  the  Republican 
party  than  it  did  to  anything  else. 

The  reconstruction  of  Louisiana  by  the  President 
anct  "General  Banks  did  more  to  precipitate  a  conflict 
upon  Congress  than  any  other  single  thing  had  yet 
done.  This  conflict  soon  became  apparent  in  many 
things,  but  in  nothing  so  much  as  in  the  debate  in  the 


CONGRESS  FEARS   THE  PRESIDENT.       345 

House  on  the  bill  to  guarantee  to  certain  states  whose 
governments  had  been  usurped  or  overthrown  a  re 
publican  form  of  government,  and  in  the  Senate,  in 
the  debate  on  the  joint  resolution  declaring  that  the 
eleven  rebellious  states  were  not  entitled  to  represen 
tation  in  the  Electoral  College,1  and  also  in  the  debate 
in  the  Senate  on  the  joint  resolution  recognizing  the 
government  of  the  state  of  Louisiana.2  This  strife 
would  have  occurred  sooner  or  later,  because  the 
causes  of  strife  existed  within  the  Republican  party ; 
but  it  occurred  when  it  did  because,  when  the  Am 
nesty  Proclamation  laid  before  the  country  the  Presi 
dential  Plan  of  reconstruction,  the  congressional  party 
for  the  first  time  was  made  aware  of  the  extent  of  the 
President's  assumption  of  the  powers  of  Congress,  of 
the  means  by  which  he  proposed  to  secure  these  pow 
ers  in  his  own  hands,  and  of  his  intentions  in  these  re 
spects  for  future  action.  The  situation  was  like  that 
existing  when  an  army  has  been  watching  the  gradual 
encroachment  of  its  opponent,  but  has  not  yet  seen 
any  movement  which  betrayed  the  force  and  intention 
of  the  enemy.  When,  at  last,  a  decisive  movement 
takes  place,  then  it  becomes  as  active  in  defence  or  in 
counteracting  as  its  antagonist  is  in  invasion:  both 
camps  are  astir.  So  it  was  in  this  instance :  the  con 
gressional  faction  had  been  for  a  long  while  eying  the 
President  askance ;  he  had  been  assuming  too  much 
power  by  proclamation  in  the  South,  and  he  had  been 
assuming  too  much  power  by  direct  and  personal  gov 
ernment  in  the  North.  So  long  as  the  sympathizers 
with  rebellion,  the  Democrats,  and  those  not  belong- 

1  February  1,  1865 :  Cong-.  Globe,  533  et  seq. 

2  February  23,  1865 :  Cong.  Globe,  1061  et  seq. 


346        PRESIDENTIAL  RECONSTRUCTION. 

ing  to  the  Republican  party,  were  objects  of  the  presi 
dential  suspicion  and  discipline  in  the  North,  the  con 
gressional  faction  had  been  deaf  to  the  outcries  of  the 
victims,  and  had  made  it  their  first  business,  on  meet 
ing  at  Washington,  to  pass  acts  condoning  these  out 
rages  and  exculpating  the  President.  But  that  which 
the  Democrats  on  the  floor  of  Congress  and  on  the 
stump  had  long  and  constantly  predicted,  and  had 
warned  the  Republicans  to  heed,  at  last  took  place, 
—  the  President  exceeded  his  powers  with  respect  to 
reconstruction,  and  turned  his  back  upon  Congress. 
This  usurpation  of  the  legislative  power  was  first  an 
nounced  emphatically,  though  indirectly,  by  the  Am 
nesty  Proclamation,  and  this  proclamation  became  at 
once  the  cause  of  opposition  in  Congress  by  members 
of  the  President's  own  political  party.  When  the 
details  of  the  Louisiana  reorganization  came  to  hand, 
it  became  evident  that  speedy  opposition  was  neces 
sary,  and  that  this  opposition,  to  be  effective,  must  not 
stop  short  of  ignoring  what  the  President  had  done 
already,  but  should  set  a  bar  upon  any  like  procedure 
in  the  future.  This  was  the  first  instance  of  Presi 
dential  reconstruction,  and  it  had  ended  in  that  state 
in  setting  up  a  military  despotism,  of  which  the  Presi 
dent  was  the  head.  There  were  ten  more  states  in 
which  he  could  clo  the  same  thing,  so  that,  unless  pre 
vented,  the  end  of  reconstruction  of  the  rebellious 
states  would  find  him  the  virtual  dictator  of  the  whole 
South.  This  would  not  be  the  end  of  the  matter. 
He  had  interfered  as  readily  in  the  affairs  of  the 
Border  States  as  he  had  done  in  Louisiana,  and  in  the 
same  character,  to  wit,  that  of  commander-in-chief.1 

1  Senator  Powell :  Cong.  Globe,  2d  Sess.  38th  Congress,  557. 


THE  PRESIDENT  A   DICTATOR.  347 

He  had  sustained  interference  by  force  of  arms  in 
these  states  with  the  same  readiness  which  he  had  ex 
hibited  in  Arkansas  and  Louisiana,  and  the  alarmed 
imagination  of  senators  and  representatives  pictured 
him  absolute  military  dictator  of  the  whole  country 
south  of  Mason  and  Dixon's  line ;  while  in  the  North, 
the  closed  newspaper  offices  and  the  prisons  crowded 
with  political  prisoners,  against  numbers  of  whom 
there  had  been  no  charges,  showed  what  they  might 
expect  of  one  so  powerful,  and  of  whose  readiness  to 
exert  unconstitutional  power  there  now  could  be  no 
doubt.  In  the  three  years  and  a  quarter  in  which  he 
had  been  President,  his  course  had  been  strewn  with 
unconstitutional  acts  ;  he  had  left  few  precedents 
lacking  for  a  future  usurper  ;  the  people  not  only  had 
ratified  these  acts  and  these  precedents  by  an  im 
mense  majority,  as  the  people  in  all  times  and  places 
have  done  when  they  have  had  the  opportunity,  but 
they  had  given  him  four  years  more  in  which  to  com 
plete  his  work  ;  and  worse  than  all,  he  had  not  only 
usurped  the  powers  of  the  people  and  of  the  states, 
but  he  had  shown  his  contempt  of  Congress  in  a 
manner  not  to  be  mistaken.  Already,  they  saw  him 
at  the  head  of  his  troops  before  the  Speaker's  chair, 
and  heard  him  cry,  "  Take  away  that  bauble !  " 

Such  were  the  imaginings  of  the  President's  own 
party  members  in  Congress.  The  radicals  mistrusted 
him  because  he  had  not  gone  far  enough  and  had 
not  enfranchised,  as  well  as  liberated,  the  Louisiana 
negro ;  the  conservatives,  if  such  a  term  can  be  applied 
to  those  of  the  Republican  party  who  were  not  radical 
abolitionists,  opposed  him  because  he  had  taken  to 
himself  the  exercise  of  power  which  properly  belonged 


348       PRESIDENTIAL  RECONSTRUCTION. 

to  them.  The  third  faction,  the  President's  own  fol 
lowing  in  Congress,  had  been  greatly  strengthened  in 
spirit  and  number  by  the  result  of  the  election  and 
the  consequent  new  lease  of  power,  and  by  the  obvious 
wane  of  the  rebellion :  this  faction  included  those  who 
were  known  as  War  Democrats.  The  President, 
therefore,  had  no  mean  support  in  the  Senate  and  in 
the  House,  particularly  when  it  is  considered  that  the 
radicals  were  always  ready  to  sustain  any  of  his  meas 
ures  which  affected  the  South  and  were  not  repugnant 
to  their  views  of  the  slave  question. 


CHAPTER  XVIII. 

ENFOKCEMENT    OF   THE    PKESIDENTIAL   PLAN   OF 
RECONSTRUCTION CONTINUED. 

The  reconstruction  of  Louisiana  continued  —  Debate   in  the  Senate 
upon  the  recognition  of  Louisiana  as  a  state. 

ON  the  eighteenth  of  February,  1865,  the  Com 
mittee  on  the  Judiciary,  to  whom  were  referred  the 
credentials  of  two  persons  claiming  seats  as  senators 
from  the  state  of  Louisiana,  made  a  report  on  the  sub 
ject  to  the  Senate,  accompanied  by  a  joint  resolution 
which  recognized  the  new  government  of  that  state  as 
the  legitimate  government,1  and  on  the  twenty-third 
of  the  same  month,  this  resolution  was  considered  as 
in  committee  of  the  whole.2 

The  debate  lasted  several  days,  and  before  it  ter 
minated,  many  of  the  leading  members  of  the  Senate 
had  taken  part  in  a  discussion  which  was  not  confined 
to  the  conditions  of  the  state  of  Louisiana,  but  which 
embraced  even  the  general  question,  What  is  a  state  ? 
In  this  discussion  the  line  was  drawn  sharply  between 
the  presidential  faction,  on  one  side,  and  the  allied 
congressional  and  radical  factions  on  the  other ;  the 
former  being  led  by  Trumbull,  Henderson,  Pomeroy, 
and  Doolittle,  and  the  latter  by  Sumner,  Howard,  and 
Wade. 

In  answer  to  a  question  why  Arkansas  was  excluded 
1  Cong-.  Globe,  903.  2  Cong.  Globe,  1011. 


350       PRESIDENTIAL  RECONSTRUCTION. 

from  the  resolution,  Trumbull,  the  chairman  of  the 
committee  reporting,  said  that  the  facts  were  not  pre 
cisely  the  same  in  the  two  states,  but  that  the  principle 
upon  which  the  committee  acted,  if  adopted,  would  be 
applicable  to  any  other  state.  Sumner  at  once  moved 
to  strike  out  all  of  the  resolution  after  the  enacting 
clause,  and  to  insert  a  resolution  that  neither  the 
people  nor  the  legislature  of  a  state  proclaimed  to  be 
in  insurrection  should  elect  representatives  or  senators 
to  Congress  until  the  President  should  have  pro 
claimed  that  armed  hostility  had  ceased  in  that  state, 
nor  until  its  people  had  adopted  a  constitution  not 
repugnant  to  the  Constitution  and  laws  of  the  United 
States ;  nor  until,  by  a  law  of  Congress,  such  state 
should  have  been  declared  to  be  entitled  to  represen 
tation  in  Congress.  Trumbull  objected  to  this,  be 
cause,  being  prospective,  it  would  not  apply  to  the 
case  in  hand,  and  because  it  would  put  it  in  the  power 
of  the  President  to  keep  out  a  state  forever  by  refus 
ing  to  issue  his  proclamation.  The  Senate  thought 
so,  too,  and  rejected  Sumner's  amendment  by  an  em 
phatic  majority. 

On  the  day  following,  Powell  continued  the  debate l 
by  saying  that  the  object  in  recognizing  Louisiana  at 
that  time  was  to  allow  the  state  to  vote  for  the  pro 
posed  amendment  to  the  Constitution  of  the  United 
States.2  The  admission  of  senators  and  representa 
tives  from  Louisiana  would  be  an  immediate  result  of 
the  passage  of  the  resolution. 

1  Cong.  Globe,  2d  Sess.  38tli  Cong.,  1061. 

2  "  Article  XIII.  Sec.  I.   Neither  slavery  nor  involuntary  servitude, 
except  as  a  punishment  for  crime  whereof  the  party  shall  have  been 
duly  convicted,  shall  exist  within  the  United  States,  or  any  place  sub 
ject  to  their  jurisdiction." 


SENATE  DEBATE   ON  LOUISIANA.         351 

Powell,  in  a  forcible  address,  objected  to  the  recogni 
tion  on  the  grounds  that  the  state  had  never  been  out 
of  the  Union,  and  therefore  it  needed  no  recognition ; 
for  whenever  the  facts  were  established  that  the  peo 
ple  of  the  state  had  ceased  resistance  to  the  federal 
government,  and  had  determined  to  be  loyal,  and  a 
majority  of  them  had  elected  their  senators  and  rep 
resentatives,  Congress  should  then  admit  these  sen 
ators  and  representatives.  But  he  was  going  to  show 
that  beyond  the  possibility  of  a  doubt  the  people  of 
Louisiana  who  formed  this  state  government  had  not 
asked  of  their  own  free  volition,  but  that  they  had 
been  coerced  to  do  what  they  did,  and  that  the  consti 
tution  presented  as  the  fundamental  law  was  not  a 
constitution  made  by  the  free  suffrages  of  the  people 
of  that  state. 

This  he  proceeded  to  do  at  length  by  taking  up  the 
test  oath  prescribed  by  the  President  and  exposing  its 
"degrading"  character  and  its  unconstitutionality. 
Its  unconstitutionality  spoke  for  itself  ;  the  oath  was 
a  condition  precedent  to  becoming  a  qualified  voter, 
and  one  feature  of  it  was  that  a  man  swore  to  support 
all  the  proclamations  of  the  President  already  issued 
on  the  subject  of  slavery,  and  all  the  proclamations 
that  he  might  make  on  that  subject  in  the  future.  No 
one  who  was  a  free  man,  and  who  understood  his  civil 
and  political  rights,  would  so  prostitute  himself  as  to 
take  that  oath ;  there  was  a  large  class  of  loyal  men 
in  Louisiana  who  refused  to  take  it ;  all  such  were 
excluded  from  voting.  No  senator  ever  had  defended 
that  odious  feature.  He  then  discussed  the  one  tenth 
minimum  of  loyalty  which  the  President  had  laid 
down  as  a  fundamental  principle  of  reconstruction, 


352       PRESIDENTIAL  RECONSTRUCTION. 

and  observed  that  one  tenth  of  the  voters  in  1860,  was 
much  less  than  one  tenth  of  those  qualified  to  vote  in 
the  state,  because  there  never  had  been  an  election  in 
which  all  the  voters  of  a  state  had  gone  to  the  polls 
and  cast  their  votes.  At  the  very  threshold,  then,  the 
principle  that  majorities  should  rule  was  repudiated, 
for  it  was  not  the  majority,  but  less  than  one  tenth  of 
the  voters,  that  was  to  rule.  When  the  President  pre 
scribed  the  qualifications  of  voters,  he  had  amended 
the  constitution  of  the  state  of  Louisiana  as  it  existed 
before  the  rebellion,  and  to  which  his  orders  had 
referred  ;  for  the  qualifications  of  voters  were  pre 
scribed  in  that  instrument. 

Powell  then  turned  his  attention  to  the  part  per 
formed  by  General  Banks.  There  is  no  need  of  reca 
pitulating  the  account  of  Banks'  misdeeds,  but  Powell 
cast  a  ray  of  light  upon  one  feature  of  the  General's 
procedure  which  should  not  be  overlooked.  He  said 
that  when  Banks  made  his  statement  before  the  Ju 
diciary  Committee,  which  he  did  with  a  great  flourish 
of  trumpets,  and  seeming  to  be  animated  with  that 
kind  of  zeal  which  would  entitle  him  to  be  called,  in 
the  language  of  lawyers,  "  a  swift  witness,"  he  was  re 
quested  to  lay  before  the  committee  all  his  proclama 
tions  and  orders.  Among  these  should  have  been  a 
second  proclamation  which  the  General  had  issued ; 
but  it  was  not  forthcoming.  Then  Powell  had  a  reso 
lution  passed  by  the  Senate,  calling  upon  the  Presi 
dent  to  send  it  to  that  body ;  but  by  this  time  Lincoln 
complied  with  the  requests  of  Congress  when  he  felt 
like  doing  so,  and  when  he  did  not  feel  in  the  humor, 
he  paid  no  attention  to  them.  In  this  instance  the 
request  of  the  Senate  fell  on  a  deaf  ear  ;  the  President 


GENERAL   ORDERS  NO.  23.  353 

gave  no  heed  to  that  body.  Now  Powell  remembered 
having  read  the  order  soon  after  it  was  issued,  and  in 
a  report,  made  by  a  committee  in  the  House  of  Rep 
resentatives  in  a  Louisiana  election  case,  he  found  an 
extract  from  Banks'  order  which  was  issued  a  little 
before  the  election.  Bearing  in  mind  that  Banks  had 
said  before  the  Committee  that  he  desired  to  state,  in 
the  most  unqualified  terms,  that  "  no  effort  whatever 
was  made  on  the  part  of  the  military  authorities  to 
influence  the  citizens  of  the  state  either  in  the  selec 
tion  of  candidates  or  in  the  election  of  officers,  and 
that  the  direct  influence  of  the  government  of  the 
United  States  was  less  in  Louisiana  than  in  the  elec 
tion  probably  of  any  other  state  of  the  Union,"  the 
following  extract  from  the  order  in  question  certainly 
justifies  Powell  in  asserting  that  Banks  was  "  wholly 
unworthy  of  confidence  when  he  testified  concerning 
this  matter."  The  extract  from  the  order  is  as  fol 
lows  :  "  Those  who  have  exercised,  or  are  entitled  to 
the  rights  of  citizens  of  the  United  States,  will  be 
required  to  participate  in  the  measures  necessary  for 
the  reestablishment  of  civil  government.  .  .  .  Indif 
ference  will  be  treated  as  a  crime  and  faction  as 
treason."  l  "  No  wonder,"  exclaimed  Powell,  "  that 
Banks  never  brought  to  our  view  that  odious  order 
in  which  he  threatens  these  people  with  punishment 
if  they  do  not  come  and  vote  ;  for  that  is  the  plain 
English  of  it." 

Powell  was  not  quite  correct  in  giving  the  source 
of  this  astonishing  extract.  It  is  to  be  found,  not  in 
a  second  proclamation,  but  in  the  order  relative  to  the 
regulation  of  labor  2  which  is  prescribed  or  suggested 

1  The  italics  are  not  Banks'.  2  General  Orders  No.  23. 


354       PRESIDENTIAL  RECONSTRUCTION. 

in  the  Amnesty  Proclamation,  and  which  in  this  case 
was  issued  by  General  Banks.1  Except  those  clauses 
which  relate  directly  to  the  military,  the  order  is 
really  addressed  to  master  and  man,  and  it  adds  force 
to  Powell's  interpretation,  that  those  whom  it  was 
designed  to  affect  were,  in  great  majority,  the  semi- 
barbarous  slaves  lately  emancipated  by  military  ser 
vice  and  special  order.  It  consists  of  twenty-five 
paragraphs,  of  which  the  concluding  seven  bristle 
with  generalities,  and,  as  may  be  readily  imagined  of 
Banks,  are  sophomoric  in  style,  and  are  hardly  worth 
the  trouble  of  picking  to  pieces.  In  the  midst  of  this 
nebulous  formation  appears  the  nucleus  contained  in 
the  foregoing  extract.  It  certainly  is  direful,  but  it 
must  not  be  forgotten  that  when  Banks  prodded  with 
the  bayonet,  he  never  failed  to  accompany  the  inflic 
tion  by  telling  the  victims  that  civil  government  must 
and  would  prevail  some  day  or  other.  This  very  para 
graph  closed  with  an  instance  in  point :  "  War  can 
never  cease  except  as  civil  governments  crush  out  con 
test,  and  secure  the  supremacy  of  moral  over  physical 
power.  The  yellow  harvest  must  wave  over  the  crim 
son  field  of  blood,  and  the  representatives  of  the  peo 
ple  displace  the  agents  of  purely  military  power."  It 
is  surprising  that,  when  the  Powells  in  Congress 
exposed  Banks'  subordination  of  the  civil  to  the  mili 
tary  authority,  the  Doolittles  and  Howes  did  not  point 
to  the  moral  suasion  with  which  he  accompanied  the 
thrusts  of  his  bayonets. 

Henderson  followed.     It  will  be  remembered  that 
he  had  strenuously  maintained  that  the  rebellious  states 
had  never  been  out  of   the  Union,  and  during  the 
1  February  3, 1864;  An.  Cycl.  1863,  596. 


SUMNER    SHIFTS  HIS  POSITION.  355 

course  of  his  remarks  there  ensued  a  colloquy  between 
him  and  Sumner,  in  which  the  senator  \from  Massa 
chusetts  denied  that  he  had  ever  stated  that  any  act 
of  secession  took  a  state  out,  and  that  he  had  always 
said  just  the  contrary,  —  the  government  of  the  state 
had  been  subverted  by  secession.  "  No  act  of  seces 
sion  can  take  a  state  out  of  this  Union,  but  the  state 
continues  under  the  Constitution  of  the  United  States, 
subject  to  all  its  requirements  and  behests.  The  gov 
ernment  of  the  state  is  subverted  by  secession."1 
This  admission  in  direct  contradiction  of  his  own  reso 
lution  was  extracted  from  the  senator,  and  not  with 
out  persistent  effort,  by  Henderson,  of  Missouri,  to 
whom  Sumner  further  asserted  that,  under  the  con 
stitutional  provision  for  a  guarantee  of  a  republican 
form  of  government,  "  it  is  the  bounden  duty  of  the 
United  States,  by  act  of  Congress,  to  guarantee  com 
plete  freedom  to  every  citizen,  and  immunity  from  all 
oppression,  and  absolute  equality  before  the  law.  No 
government  that  does  not  guarantee  these  things  can 
be  recognized  as  republican  in  form  according  to  the 
theory  of  the  Constitution  of  the  United  States,  if  the 
United  States  are  called  to  enforce  the  constitutional 
guarantee."  2  Thus  Sumner,  a  radical  of  the  radicals, 
abandoned  the  position  he  had  formerly  occupied  along 
with  Stevens,  respecting  the  status  of  the  insurrection 
ary  states.  He  was  compelled  to  acknowledge  that  they 
were  still  in  the  Union ;  nevertheless,  he  continued  to 
claim  for  Congress  the  power  of  settling  the  question, 
and,  most  significant  of  all,  he  proclaimed  to  the  world 
that  henceforth  a  republican  form  of  government  was 
incompatible  with  the  existence  of  slavery,  and  where 
1  Cong.  Globe,  1067.  2  Id. :  id. 


356        PRESIDENTIAL  RECONSTRUCTION. 

that  institution  was  a  feature  of  the  state,  this  state 
should  not  .be  recognized :  thus  he  saved  his  radi 
calism. 

Henderson  kept  pressing  Sumner,  and  at  length 
asked  him  if  Congress  could  interfere  with  the  right 
of  suffrage  in  one  of  the  states  of  the  Union.  Sum 
ner  evaded  the  question  by  saying  that,  at  the  present 
time,  under  the  guarantee  clause,  it  was  the  bounden 
duty  of  the  United  States  by  act  of  Congress  to  guar 
antee  complete  freedom  to  every  citizen  and  absolute 
equality  before  the  law.  No  government  that  does 
not  guarantee  these  things  could  be  recognized  as  re 
publican.  "  If  the  loyal  men,  white  and  black,  recog 
nize  it,  then  it  will  be  republican  in  form."  Where 
upon  Henderson  quoted  Madison's  limitation  of  this 
guarantee  to  a  preexisting  government,  and  also  the 
following  passage  from  the  Federalist1  by  the  same 
authority :  "  As  long,  therefore,  as  the  existing  repub 
lican  forms  are  continued  by  the  states,  they  are  guar 
anteed  by  the  federal  constitution.  Whenever  the 
states  may  choose  to  substitute  other  republican  forms, 
they  have  a  right  to  do  so,  and  to  claim  the  federal 
guarantee  for  the  latter."  Henderson,  nevertheless, 
sustained  the  presidential  reorganization  of  Louisiana. 
He  thought  that  when  a  majority  of  the  people  of  a 
state  pass  an  ordinance  of  secession,  one  of  three  things 
must  be  true  :  either  this  ordinance  is  valid ;  or  the 
loyal  minority  have  a  right  to  institute  government 
for  their  protection ;  or,  lastly,  Congress  may  proceed 
to  govern  the  state  for  all  time  to  come,  with  the  hard 
and  oppressive  hand  of  military  rule.  He  believed  in 
the  loyal  minority  instituting  a  government  for  its 

1  Number  43. 


HOWARD   ON  TUTELAGE.  357 

protection,  and,  in  the  case  of  Louisiana,  thought  that 
the  mere  fact  that  General  Banks  had  provided  a  way 
for  the  loyal  men  to  express  their  sentiments  did  hot 
invalidate  their  action.  He  admitted  that  Banks  £ad 
no  legal  authority  to  do  a  great  many  things  that  he 
had  done,  but  he  declared  the  question  to  be,  Was  this 
constitution  the  will  of  the  loyal  men  of  that  state  ? 
He  then  took  Howard  to  task  for  having  said  that  he 
would  keep  the  rebellious  people  in  tutelage  for  five, 
ten,  or  twenty  years.  Howard  at  once  interposed,  say 
ing  that  he  had  added,  "  if  that  length  of  time  should 
be  necessary  to  reproduce  loyalty  in  a  seceded  state, 
and  thus  to  restore  them  to  the  Union  as  a  loyal  peo 
ple."  But  Henderson  quoted  Howard's  exact  words, 
and  referred  him  to  the  page  of  the  Congressional 
Globe  1  on  which  appeared  a  remark,  which,  as  evi 
dence  of  the  feeling  of  some  of  the  northern  leaders 
towards  the  southern  people,  should  be  repeated.  It  is 
thus  given  :  "  I  never  will  consent  to  admit  into  this 
Union  a  state,  a  majority  of  whose  people  are  hostile 
and  unfriendly  to  the  government  of  my  country.  I 
prefer  to  hold  them  in  tutelage  (for  that  is  really  the 
word)  one  year,  five  years,  ten  years,  even  twenty 
years,  rather  than  run  the  risk  of  a  repetition  of  this 
rebellion,  which  has  cost  us  so  much  blood  and  treas 
ure." 

Howard  might  have  saved  himself  the  mortification 
of  a  contradiction  by  sticking  to  his  text ;  for,  one 
year  afterwards,  this  assumption  and  this  policy  had 
become  the  groundwork  of  the  congressional  action  in 
southern  reconstruction. 

In  this  debate  Henderson  laid  down  the  principles 
1  2d.  Sess.  38th  Cong.  p.  554. 


358       PRESIDENTIAL   RECONSTRUCTION. 

of  the  Presidential  Plan  so  clearly  and  succinctly  that 
his  analysis  and  summary  is  worthy  of  reproduction. 
It  is^as  follows :  — 

Xl.yThat  the  seceded  states  are  still  in  the  Union, 
anctrarmot  get  out  of  it  except  through  an  amendment 
of  tjie  Constitution  permitting  it. 

V  2.)  The  seceded  states  being  still  in  the  Union 
are  entitled  to  claim  all  the  rights  accorded  to  other 
states.. 

/  3.^  That  each  state  now  in  the  Union  has  the  right 
to  stand  upon  the  form  of  its  constitution  as  it  existed 
at  the  time  of  its  admission.  The  people  of  such 
state  may  change  its  constitution,  provided  they  retain 
a  republican  form  of  government ;  but  neither  the 
President  nor  Congress  can  reform,  alter,  or  amend 
such  constitution,  nor  prescribe  any  alteration  or 
amendment  as  a  condition  of  association  with  the 
other  states  of  the  Union.  The  General  Government 
may  properly  lend  its  aid  to  enable  the  people  to 
express  their  will ;  but  any  attempt  to  exercise  power 
constitutionally  reserved  to  the  state,  beyond  what 
may  be  demanded  by  the  immediate  exigencies  of 
war,  will  not  tend  to  restore  the  Union,  but  rather  to 
destroy  our  whole  system  of  government. 

r4.  "J^hen  citizens  of  a  state  rebel  and  take  up 
arms-against  the  General  Government,  they  lose  their 
rights  as  citizens  of  the  United  States,  and  they  ne 
cessarily  forfeit  those  rights  and  franchises  in  their 
respective  states  which  depend  on  United  States  citi 
zenship. 

'f  5.  If  a  seceded  state  be  still  in  the  Union,  enti 
tled  to  recognition  as  a  state,  and  a  majority  of  the 
people  have  voluntarily  withdrawn  their  allegiance, 


HENDERSON'S  SUMMARY.  359 

the  loyal   minority  constitute   the    state  and  should 
govern  it. 

'f 6y  Congress  should  not  reject  the  governments 
presented,  because  of  mere  irregularity  in  the  proceed- 
ings^leading  to  their  reorganization. 

'!  l.J  If  Congress  has  no  right  to  make  and  impose 
a  constitution  upon  the  people  of  any  state;  if  its 
power  extends  no  further  than  to  guarantee  preexist 
ing  republican  forms  of  government ;  if  the  state  still 
exists,  and  the  loyal  men  are  entitled  to  exercise  the 
functions  of  its  government,  it  follows  that  the  only 
questions  to  be  examined  here  are,  first,  Is  the  consti 
tution  the  will  of  the  loyal  men  qualified  to  act  ?  and, 
second,  Is  it  republican  in  form  ? 

/§A  The  constitutions  of  Louisiana  and  Arkansas 
are  Thought  to  be  republican  in  form,  and  it  is  ad 
mitted  that  the  loyal  men  of  those  states  respectively 
acquiesce  in  them.  Hence  the  duty  of  Congress  to 
recognize  them,  and  the  duty  of  each  House  to  admit 
their  representatives." 

The  first  three  of  these  clauses  embody  principles 
which  were  acceptable  not  only  to  the  supporters  of 
the  Presidential  Plan,  but  also  to  the  Democrats  or 
strict-constructionists  themselves,  who  might  have  ac 
cepted  even  the  fourth  clause  were  not  the  language 
susceptible  to  interpretation  so  broad  that  the  princi 
ple  contained  in  the  third  clause  would  be  endangered 
or  even  sacrificed.  But  the  remaining  clauses  would 
£  certainly  be  rejected  by  the  Democrats.  For,  so  long 
as  the  conditions  of  the  fifth  clause  existed,  a  Democrat 
would  not  recognize  them  at  all  as  conditions  for  "  re 
construction  :  "  until  a  majority  of  the  people  should 
resume  their  "  allegiance  "  in  good  faith,  he  would  re- 


360        PRESIDENTIAL  RECONSTRUCTION. 

gard  the  recognition  of  the  state  as  out  of  the  question. 
When  such  majority  existed,  and  manifested  its  obe 
dience  to  the  Constitution  and  the  laws,  no  "  recon 
struction  "  would  be  necessary  :  for  all  that  would  be 
necessary  for  "  restoration  "  of  the  Union  would  be 
election  of  state  officers  who  acknowledged  the  federal 
government,  and  the  reception  of  its  senators  and  rep 
resentatives  by  the  two  houses  of  Congress.  Such 
being  his  view  of  the  case,  he  would  dismiss  the  sixth, 
seventh,  and  eighth  clauses  without  further  considera 
tion  ;  for,  if  he  would  never  assent  to  the  proposition 
that  a  minority,  however  loyal,  constituted  the  state, 
neither  would  he  recognize  any  proceedings  by  a  power 
other  than  that  of  the  people  of  the  state  for  the  "  re 
organization,"  however  clear  of  irregularity,  nor  even 
admit  that  the  constitution  of  a  state  should  express 
the  will  of  anybody  but  the  whole  people.  He  would 
say  with  Powell :  "  Senators,  before  they  can  vote  for 
this  resolution,  must  maintain  the  doctrine  contained 
in  the  President's  proclamation  of  the  eighth  of  De 
cember,  1863,  when  he  proposed  that  one  tenth  of  the 
loyal  voters  of  a  state,  who  would  comply  with  the  con 
ditions  set  forth  in  his  proclamation,  should  form  a 
state  government.  They  must  further  maintain  that 
the  President  of  the  United  States,  of  his  own  voli 
tion,  has  power  by  decretal  order  to  alter  the  constitu 
tion  of  a  state.  They  must  maintain  further  that  the 
President  of  the  United  States  has  the  power  to  pre 
scribe  the  qualifications  of  voters  and  the  qualifications 
of  candidates  for  office  in  the  state.  They  must  fur 
ther  believe,  not  only  that  the  President  possesses 
these  powers,  but  that  Major-General  Banks  possessed 
these  powers  in  the  state  of  Louisiana  by  virtue  of  a 


SUMMER'S  MANIFESTO.  361 

major-general  of  the  army  commanding  in  that  dis 
trict."  Assuredly,  he  could  never  countenance  the 
conclusion  that  Louisiana  and  Arkansas  should  be 
restored  to  the  Union  merely  for  the  reasons  given  by 
the  President  and  his  adherents,  including  Henderson. 
He  could  almost  say  with  Simmer  : l  "  The  pretended 
state  government  in  Louisiana  is  utterly  indefensible, 
whether  you  look  at  its  origin  or  its  character." 

If  the  leading  clauses  contain  the  principles  and  the 
conditions  from  which  the  reconstruction  of  Louisiana 
and  its  restoration  to  the  Union  are  to  follow,  it  is 
indeed  difficult  to  comprehend  the  logical  sequence 
which  the  whole  series  of  Henderson  must  have  pre 
sented  to  the  mind  of  a  Democrat.  In  fact,  this  man 
ifesto  of  principles  did  not  harmonize  with  the  actual 
proceedings  of  the  President  in  the  reconstruction  of 
Louisiana  and  Arkansas. 

At  this  stage  of  the  debate,  Sumner  offered  a  sub^ 
stitute  for  the  resolution  of  recognition,  which  embod 
ied  the  grounds  of  opposition  entertained  by  the  radi 
cals  to  the  Presidential  Plan,  and  their  demand  for 
negro  suffrage.  It  set  forth  that  it  was  the  duty  of 
the  United  States,  at  the  earliest  practicable  moment, 
to  reestablish  by  act  of  Congress  republican  govern 
ments  in  those  states  where  loyal  governments  had 
been  vacated  by  the  existing  rebellion ;  that  this 
important  duty  was  imposed  by  the  Constitution  in 
express  terms  on  "  the  United  States,"  and  not  on  in 
dividuals  or  classes  of  individuals,  or  on  any  military 
commander  or  executive  officer,  but  it  must  be  per 
formed  by  the  United  States,  represented  by  the 
President  and  both  Houses  of  Congress  ;  that  in  de- 
1  Cong.  Globe,  February  24,  1129. 


362        PRESIDENTIAL  RECONSTRUCTION. 

termining  the  extent  of  this  duty,  and  in  the  absence  of 
any  precise  definition  of  the  term  "  republican  form  of 
government,"  no  error  would  be  committed  if  the  con 
sent  of  the  governed  should  be  insisted  upon  as  the 
only  just  foundation  of  government,  and  that  all  men 
should  be  equal  before  the  law  ;  that  it  was  plain  that, 
in  the  performance  of  the  constitutional  guarantee, 
there  could  be  no  power  under  the  Constitution  to  dis 
franchise  loyal  people,  or  to  recognize  any  such  dis- 
franchisement,  especially  when  it  might  hand  over  the 
loyal  majority  to  the  control  of  the  disloyal  minority ; 
nor  could  there  be  any  such  power  to  discriminate  in 
favor  of  the  rebellion  by  admitting  to  the  electoral 
franchise  rebels  who  had  forfeited  all  rights,  and  by 
excluding  loyal  persons  who  had  never  forfeited  any 
right ;  that  the  reestablishment  of  no  state  should  be 
allowed  without  proper  safeguards  for  the  rights  of  all 
citizens,  and  especially  without  making  it  impossible 
for  rebels  in  arms  to  trample  upon  the  rights  of  those 
then  fighting  the  battles  of  the  Union  ;  that  a  govern 
ment  founded  on  military  power,  or  having  its  origin 
in  military  orders,  could  not  be  "  a  republican  form  of 
government,"  and  that  its  recognition  would  be  con 
trary  not  only  to  the  Constitution,  but  to  that  essen 
tial  principle  of  government  which,  in  the  language 
of  Jefferson,  establishes  "  the  supremacy  of  the  civil 
over  the  military  authority ; "  that  in  the  states  whose 
governments  have  already  been  vacated,  a  government 
founded  upon  an  oligarchical  class  could  not  sustain 
itself  without  national  support ;  that  such  a  govern 
ment  was  not  competent,  at  that  moment,  to  discharge 
the  duties  and  execute  the  powers  of  a  state,  and  that 
its  recognition  as  a  legitimate  government  would  tend 


MILITARY  GOVERNMENTS  UNREPUBLICAN.    363 

to  enfeeble  the  Union,  to  postpone  the  day  of  recon 
ciliation,  and  to  endanger  national  tranquillity ;  that 
considerations  of  expediency  are  in  harmony  with  the 
requirements  of  the  Constitution  and  the  dictates  of 
justice  and  reason,  especially  since  colored  soldiers 
had  shown  their  military  value  ;  that  as  their  muskets 
had  been  needed  for  the  national  defence  against  reb 
els  in  the  field,  so  would  their  ballots  be  yet  more 
needed  against  the  subtle  enemies  of  the  Union  at 
home,  and  that  without  their  support  at  the  ballot-box 
the  cause  of  human  rights  and  of  the  Union  itself 
would  be  in  constant  peril.1 

Sumner  asked  to  have  this  substitute  printed, 
which  was  agreed  to,  and  thus  placed  upon  the  record, 
a  counter-manifesto  or  protest  against  the  Amnesty 
Proclamation.  The  features  of  this  manifesto  are  too 
prominent  to  be  overlooked.  The  first  on^fsJ  that 
the  old  governments  in  the  seceded  states  had  been 
"  vacated  "  by  the  existing  rebellion,  and  that  it  was 
the  duty  of  the  United  States  to  reestablish  "  republi 
can  governments,"  but  that  no  government  should  be 
recognized  as  republican  which  had  its  origin  in 
military  orders,  and  where  the  civil  was  subordinated 
to  the  military  authority,  or  the  rule  of  the  majority 
repudiated^ylior  where  such  government  was  insti 
tuted  by  any  executive  officer,  or  by  any  one  except 
the  United  States,  and  that  the  term  "  the  United 
States  "  meant  President  and  Congress.  Inasmuch 
as  Sumner,  the  day  before,  had  replied  to  Henderson 
that  "  it  was  the  bounden  duty  of  the  United  States 
by  act  of  Congress  to  guarantee  complete  freedom," 
the  share  which  he  meant  Congress  to  take  in  the 
1  Cong.  Globe,  2d  Sess.  38th  Cong.,  1091. 


364        PRESIDENTIAL  RECONSTRUCTION. 

division  of  this  constitutional  duty  between  the  legis 
lature  and  the  Executive  is  clear.  £jU?he  manifesto 
provided  for  the  exclusion  of  rebels,  but  there  was 
one  thing  more  exclusive  than  presidential  proclama 
tions,  congressional  enactments,  state  constitutions,  or 
state  laws,  and  that  was  a  majority  of  votes.  As 
this  majority  of  votes  could  not  be  found  among  the 
whites,  he  sought  it  among  the  blacks.  It  is  notice 
able  that  for  once  there  is  no  talk  on  Sumner's  part 
about  the  "  oligarchy  of  skin,"  or  the  rights  of  the 
negro.  He  does  not  cloud  his  object  with  mock  phi 
lanthropy,  but  goes  right  to  the  root  of  the  matter  and 
lays  it  bare.  It  is  this  :  If  you  mean  to  keep  your 
power,  you  must  outvote  the  Southerner  in  his  home, 
and  the  only  way  to  do  that  will  be  to  swamp  the 
ex-rebels  with  the  votes  of  their  ex-slaves.  It  was 
only  four  days  before l  that  Henry  Winter  Davis  had 
made  his  doleful  prediction  in  the  House,  and  had 
pictured  the  representatives  and  senators  from  the 
South  claiming  admission  to  Congress,2  and  Summer, 
on  his  part,  dropping  even  the  pretence  of  philan 
thropy,  at  once  raised  the  cry  of  warning  in  the 
Senate ;  "  their  ballots,"  said  he,  "  are  yet  more 
needed  against  the  subtle  enemies  of  the  Union  at 
home,  and  without  their  support  at  the  ballot-box  the 
cause  of  human  rights  and  of  the  Union  itself  will  be 
in  constant  peril." 

As  the  Kepublicans  had  all  along  appropriated  to 
themselves  the  cause  of  human  rights  and  of  the 
Union,  and  had  denounced  without  ceasing  the  Demo 
crats  as  the  subtle  enemies  of  the  Union,  it  is  not 

1  February  21,  1865. 

2  Cong.  Globe,  2d  Sess.  38th  Cong.,  969. 


THE  NEGRO  BALLOT.  365 

straining  the  senator's  language  too  far,  in  view  of 
Davis'  prediction,  to  read  his  warning  after  this 
fashion :  "  The  ballots  of  the  negroes  are  needed  to 
prevent  the  reinforcement  of  the  Democratic  minority 
by  their  old  allies,  the  Southerners,  and  without  negro 
ballots  at  the  ballot-box  the  supremacy  of  the  Repub 
lican  party  will  be  in  constant  peril." 

Howard  then  took  the  floor  and  asked  the  question 
where  in  the  Constitution  could  authority  be  found 
enabling  the  President  to  assure  one  tenth  part  of  the 
people  of  an  insurrectionary  state,  that  they,  to  the 
exclusion  of  all  other  portions  of  the  population  of 
that  state,  should  be  recognized  as  the  state,  and  be 
entitled  to  all  the  benefits  of  the  guarantee  contained 
in  the  Constitution  ?  Here  was  an  attempt  to  stretch 
the  executive  authority  beyond  anything  which  the 
country  had  thus  far  witnessed,  and  he  thought  that 
it  was  time  for  Congress  to  lay  hold  of  this  subject, 
assert  their  power,  and  provide  by  a  statute  of  uni 
form  application  for  the  reconstruction,  as  it  was 
called,  and  readmission  of  these  states.  That  was 
the  right,  the  duty,  of  Congress ;  that  was  not  the 
right,  the  duty,  of  the  President  of  the  United  States. 
He  went  somewhat  learnedly  into  the  question,  What 
is  a  state  ? l  He  rejected  the  idea  that  the  rebellious 
states  could  be  converted  into  territories,  yet  he  said 
that  he  could  not  escape  from  the  conclusion  that  the 
United  States,  as  the  party  which  had  conquered  the 
rebel  country,  and  who  held  it  necessarily  in  the  iron 
grip  of  war,  had  the  right,  as  the  conqueror,  to  rule 
and  govern  the  state  as  conquered  country,  subject  for 
a  time  at  least  to  their  sole  will. 

1  Howard  took  PenhaUow's  Case,  3  Dallas,  94,  as  a  text 


366        PRESIDENTIAL  RECONSTRUCTION. 

This  was  to  outdo  himself,  for  all  that  Henderson 
had  proved  against  Howard  was,  that  he  would  keep 
the  seceded  states  in  a  "  tutelage  "  of  one,  five,  ten,  or 
twenty  years  ;  but  now  he  went  still  farther,  until  he 
planted  himself  upon  the  merciless  vae  metis  policy 
of  Thaddeus  Stevens.  Better  far  had  he  adopted  the 
position  taken  by  Sumner  in  his  resolution  of  Febru 
ary  11,  1862,  and  accorded  the  states  the  grace  of 
being  territories  of  the  United  States  :  for  a  terri 
tory  of  the  United  States  is  under  the  reign  of  law, 
but  a  conquered  territory  is  under  no  law,  and  is  sub 
ject  to  the  mere  will  of  a  commander  and  to  the  sway 
of  that  commander's  sword. 

Reverdy  Johnson  followed,1  and,  after  giving  an 
epitome  of  the  principal  facts  which  led  to  the  reor 
ganization  of  Louisiana,  astonished  the  Senate  and 
particularly  his  Democratic  comrades  by  accepting  the 
presidential  reconstruction  of  that  state,  and  recog 
nizing  its  government.  He  shed  much  light  on  the 
reason  that  led  the  committee  to  recommend  the  rec 
ognition.  He  said  that  the  committee  were  of  the 
opinion  that  it  was  not  in  the  power  of  the  President, 
under  the  circumstances,  to  bring  the  state  back  under 
the  constitution  of  1864,  but  that  it  was  competent 
for  Congress  to  do  so.  In  taking  this  position,  this 
astute  lawyer  anticipated  events.  He  reviewed  the 
objections  to  recognition,  and  answered  them :  First, 
that  this  government  had  been  instituted  at  the  in 
stance  and  under  the  power  of  the  military  authori 
ties  of  the  United  States.  He  admitted  that  the  pre 
cedent  was  a  bad  one,  but  his  conclusion  was  that  no 
matter  how  the  proceedings  were  instituted,  if  in  point 

1  Cong.  Globe,  2d  Sess.  38th  Congress,  1095. 


REVERDY  JOHNSON.  367 

of  fact  the  people  of  the  state  acted  voluntarily,  and 
were  competent  to  act  under  the  original  constitution, 
and  were  authorized  to  act  by  being  loyal  at  the  time 
they  did  act,  it  was  the  duty  of  the  United  States  to 
receive  them  back.  Whether  they  were  brought  to 
gether  under  the  authority  of  the  President's  Amnesty 
Proclamation,  or  by  the  authority  of  General  Banks, 
made  no  difference.  If,  coming  together,  they  did  an 
act  which  they  would  have  been  authorized  to  do  if 
they  had  come  together  voluntarily,  they  should  be 
received. 

Another  objection  was  that,  however  true  it  might 
be  that  it  would  be  in  the  power  of  all  the  voters  of 
the  state  to  adopt  a  constitution  for  themselves,  or  to 
claim  the  right  of  coming  back  under  the  constitution 
existing  at  the  inception  of  the  rebellion,  it  was  not 
true  that  it  was  in  the  power  of  11,414  voters  to  take 
that  course,  when  the  entire  voting  population  of  the 
state  was  51,000.  It  seemed  to  him  that  there  was 
no  evidence  to  show  that  a  single  citizen  of  Louisiana 
was  excluded  from  the  right  of  voting.  It  by  no 
means  followed  that  there  was  an  exclusion,  either 
in  fact  or  in  law,  because  the  vote  of  11,000  was 
much  less  than  the  vote  that  could  have  been  cast 
before  the  rebellion  occurred.  The  war  began  in  1861, 

O 

and  these  proceedings  were  had  in  1864.  Now,  the 
greater  proportion  of  the  fighting,  and  therefore  of 
the  voting  population  entered  into  the  military  service 
of  the  confederate  government,  and  of  these  most  had 
forfeited  their  lives  on  the  battlefield,  and  of  those 
over  and  under  the  age  of  military  service  some  had 
gone  elsewhere,  or  had  stayed  where  they  were,  but  as 
disloyal,  not  as  loyal  citizens.  It  by  110  means  fol- 


368        PRESIDENTIAL  RECONSTRUCTION. 

lowed,  therefore,  that  the  number  of  votes  cast  was 
not  a  large  majority  of  the  actual  number  of  voters  to 
be  found  at  that  time  in  Louisiana.  So  then  it  was 
not  only  not  certain,  but  it  was  quite  improbable,  that 
there  was  a  single  person  excluded  from  the  privilege 
of  voting  who  should  have  been  entitled  to  vote. 

That  being  the  case,  another  thing  was  to  be  con 
sidered  :  What  was  the  condition  o*f  the  loyal  citizens 
of  Louisiana,  in  the  relation  in  which  they  stood  to 
the  federal  government,  by  reason  of  the  ordinance  of 
secession  ?  Nobody  pretended  that  they  had  ceased 
to  be  citizens  of  the  United  States  :  and  if  loyal, 
nobody  would  say  that  they  had  forfeited  any  of  the 
rights  which  belonged  to  them  when  the  rebellion 
broke  out.1  When,  then,  the  protection  of  the  United 
States  was  afforded  them,  and  they  saw  that  they 
could  speak  their  sentiments  without  hazard,  they  met 
at  their  election  polls,  organized  their  government 
under  the  existing  constitution,  and  then,  wishing  to 
change  it,  met  in  convention  and  adopted  the  consti 
tution  now  before  Congress :  why  should  this  govern 
ment  not  be  reorganized  ? 

Powell  interrupted  to  ask  the  question  :  What  right 
had  the  Senate  to  presume  that  there  may  not  have 
been  12,000  loyal  voters  in  Louisiana  who  were  de 
prived  of  the  right  of  voting  because  of  the  order  of 
General  Banks  ?  As  he  understood  it,  no  one  could 
vote,  no  matter  how  loyal,  although  he  had  borne  arms 
for  the  Union  and  had  always  been  for  the  old  flag 
and  the  old  Union,  unless  he  would  take  the  oath  pre- 

1  Thaddeus  Stevens  had  discussed  this  point,  and  had  expressly 
declared  that  it  was  the  misfortune,  though  not  the  fault,  of  these 
loyal  people  to  suffer  the  fate  of  the  disloyal  majority. 


A   DILEMMA.  369 

scribed  by  the  President,  and  swear  to  support  all 
proclamations  in  regard  to  African  slavery  which  had 
been  already  issued,  and  all  that  might  afterward  be 
issued. 

Johnson  admitted  that  this  was  a  difficulty  which  he 
had  always  felt.  He  asked,  were  these  states  to  be 
governed  as  provinces  ?  If  so,  there  was  no  limita 
tion  to  the  power  of  Congress.  If  they  were  to  be 
dealt  with  by  the  conqueror  as  he  thought  proper, 
what  was  to  become  of  the  loyal  citizens  ?  Where 
were  the  limitations  thrown  around  the  power  of  Con 
gress  ?  All  gone.  Were  they  to  be  governed  as  ter 
ritories  of  the  United  States?  If  so,  the  right  to 
meet  in  convention  and  establish  a  constitution  for 
themselves  without  a  law  of  Congress  authorizing  it 
could  not  be  taken  from  them.  It  was  the  American 
doctrine  that  the  people  have  a  right,  as  against  the 
government,  to  meet  and  establish  a  government  for 
themselves. 

Johnson  then  turned  his  attention  to  the  amend 
ment  or  substitute  which  Sunnier  had  that  morning 
laid  on  the  table.  He  characterized  some  of  its  doc 
trine  as  most  remarkable,  and  asked  whither  would  it 
lead  if  true  ?  Suppose  the  senator  got  Louisiana  back 
under  an  act  of  Congress  such  as  he  would  draw,  say 
ing  to  the  people  ;  "  You  are  authorized  to  frame  a 
constitution  for  yourselves,  provided  you  will  insert  in 
it  a  clause  that  the  right  of  suffrage  shall  be  exercised 
by  the  black  as  well  as  by  the  white,"  and  they  were 
admitted ;  did  he  think  that  it  would  not  be  in  their 
power  to  change  that  afterward  ?  When  Congress 
admits  a  state  into  the  Union,  it  puts  such  a  state 
on  an  equality  with  all  the  other  states.  Would  the 


370        PRESIDENTIAL  RECONSTRUCTION. 

Senator  from  Massachusetts  deny  that  it  would  be  in 
the  power  of  Massachusetts  that  day  to  exclude  the 
black  ?  Yet,  if  an  act  of  Congress  placed  it  out  of 
the  power  of  the  seceded  states  when  they  came  back, 
under  the  authority  of  that  act,  to  change  the  quali 
fications  of  electors,  they  would  not  come  back  as 
the  equals  of  Massachusetts. 

Sumner  interposed  with  an  inquiry  concerning  the 
power  of  a  state  organized  under  the  ordinance  pro 
hibiting  slavery  throughout  the  Northwest  Territory, 
and  which  was  declared  to  be  a  perpetual  compact,  to 
set  aside  this  ordinance.  Johnson  thought  the  state 
could  do  so,  except  so  far  as  rights  were  vested.  A 
sharp  colloquy  ensued,  in  which  Sumner  was  mani 
festly  unable  to  cope  with  Johnson,  who  forced  his 
opponent  to  concede  that  Massachusetts  had  done 
wrong  when  she  united  with  South  Carolina  in  with 
drawing  from  Congress  authority  to  prohibit  the  slave 
trade  for  twenty  years.  He  likewise  exposed  a  gross 
mistake  of  Sumner,  who  attributed  to  General  Wash 
ington  advocacy  of  consolidation  of  the  states.  All 
that  Washington  meant,  said  Johnson,  was  that  the 
Union  existing  under  the  Articles  of  Confederation 
was  made  a  stronger  and  more  consolidated  Union 
than  it  had  been  under  those  Articles ;  not  that 
Washington  by  this  expression  intended  to  announce 
as  the  true  theory  of  the  Constitution  that  the  govern 
ment  of  the  United  States  was  one  government,  pos 
sessed  with  all  the  powers  that  belonged  to  one  single 
government.  This  brought  forward  Henderson,  who 
read  a  part  of  the  letter  of  Washington,  which  showed 
beyond  cavil  that  Washington  did  not  convey  the 
idea  Sumner  had  attributed  to  him,  but  had  used  the 


SUMNER   CONFUTED.  371 

very  words,  "the  consolidation  of  our  Union"  This 
incident  did  not  enhance  the  credit  of  Sumner  for 
ingenuousness.  The  next  day,  he  made  matters 
worse  by  reading  a  letter  of  Washington  to  John  Jay, 
in  which  the  writer  recognized  as  essential  to  our 
national  existence  a  power  which  would  "  pervade  the 
whole  Union  in  as  energetic  a  manner  as  the  authority 
of  the  state  governments  extends  over  the  several 
states." 

The  debate  drifted  on  in  a  colloquial  way,  with 
Clark,  Pomeroy,  Saulsbury,  Sumner,  Davis,  Johnson, 
Wade,  Powell,  Henderson,  Trumbull,  Hendricks, 
Doolittle,  half  of  the  Senate,  taking  part,  and  grew 
more  and  more  disputatious.  Attempts  were  made  to 
terminate  it  by  motions  to  adjourn,  to  postpone,  and 
to  lay  011  the  table,  but  were  voted  down.  "  The  dis 
cordant  elements  of  the  Republican  party  are  exhibit 
ing  themselves  here,"  said  Hendricks.  "  But  four 
years  ago,  a  solemn  pledge  was  made  to  the  people 
of  this  country  that  that  party,  when  it  came  into 
power,  would  not  undertake  to  interfere  with  the 
institutions  of  the  states.  As  soon  as  the  disturbed 
condition  of  the  country  gave  the  pretext  for  it, 
the  undertaking  was  commenced ;  and  now,  when,  in 
the  judgment  of  some,  it  has  been  accomplished,  there 
comes  up  the  grave  question,  what  is  to  be  done,  and 
what  is  to  be  the  political  condition  of  the  4,000,000 
negroes  when  they  are  set  free?  And  upon  that 
question  the  real  strife  of  to-night  has  been  witnessed. 
That  is  the  subject,  and  it  need  not  be  disguised: 
it  is  growing  out  of  the  discordant  elements  of  the 
party  that  now  governs  the  country.  .  .  .  There  are 
senators  upon  the  Eepublican  side  who  feel  that  it 


372        PRESIDENTIAL  RECONSTRUCTION. 

is  a  very  troublesome  question.  The  Senator  from 
Massachusetts  (Simmer)  is  determined  that  none  of 
these  states  shall  ever  be  heard  in  the  halls  of  Con 
gress,  until  the  men  who  speak  from  those  states 
speak  the  voice  of  the  negroes  as  well  as  that  of  the 
white  men.  Other  senators  say  that  shall  not  be. 
We  Democrats  are  a  unit  upon  that  question.  We 
believe  that  this  government  was  made  by  white  men 
for  white  men,  and  we  expect  to  stand  by  that  idea. 
Let  the  controversy  go  on."  1 

An  adjournment  being  at  last  effected,  the  debate 
was  renewed  two  days  afterward,  when  Wade  made 
one  of  his  trenchant,  denunciatory  speeches  against 
the  recognition  of  Louisiana,  and  of  its  two  senators, 
"representing  nobody  and  nothing  except  the  will 
of  the  commander-in-chief  of  the  army  of  the  United 
States,"  and  against  the  plan  and  everything  that 
was  presidential.  Sumner  ended  the  debate  with  a 
burst  of  fury,  in  which  he  made  the  coarse  but  very 
effective  assertion,  much  commented  upon  through 
out  the  country,  that  the  pretended  state  government 
of  Louisiana  was  "  a  mere  seven-months'  abortion,  be 
gotten  by  the  bayonet  in  criminal  conjunction  with 
the  spirit  of  caste,  and  born  before  its  time,  rickety, 
unformed,  unfinished  —  whose  continued  existence 
would  be  a  burden,  a  reproach,  and  a  wrong.  That," 
said  he,  "  is  the  whole  case."  2 

With  these  scathing  words,  the  debate  upon  the 
recognition  of  Louisiana  closed.  Sherman  had  made 
a  motion  that  the  pending  rule  be  dispensed  with, 
so  as  to  take  up  the  bill  which  had  been  made  the 

i  Cong.  Globe,  2d  Sess.  38th  Cong.,  1098. 
1  Cong.  Globe,  1129. 


LOUISIANA   NOT  RECOGNIZED.  373 

special  subject  of  the  day.  He  now  insisted  on  the 
order  of  the  Senate  being  enforced,  or  on  abandoning 
his  motion.  "  Senators  must  see  now  that  to  take 
up  this  controverted  (Louisiana)  question,  in  the 
face  of  the  statements  made  here,  is  to  exhaust  the 
expiring  hours  of  this  session  on  a  controversy  in 
which  the  members  of  our  own  political  party  are 
divided."  Thus  did  he  accept  and  confirm  the  asser 
tion  of  Hendricks  that  the  Republican  party  was  di 
vided  on  the  negro  question,  or  rather  the  freedman 
question.  The  vote  on  Sherman's  motion  was  re 
garded  as  a  test  vote  on  the  pending  question  of  the 
recognition  of  Louisiana ;  for  if  Sherman  prevailed, 
there  could  be  little  hope  that  in  the  few  days  that 
were  left  of  the  session,  Louisiana  would  obtain  rec 
ognition.  Accordingly,  the  Senate  was  marked  by  a 
very  full  attendance,  four  senators  only  being  absent, 
and  when  the  vote  was  taken  on  Sherman's  motion, 
thirty-four  voted  aye,  and  twelve  nay.  Louisiana  had 
failed  to  obtain  recognition. 


CHAPTER  XIX. 

WHAT    CONSTITUTES   A   STATE    OF    THE    AMERICAN 
UNION  ? 

Debate  in  the  Senate  upon  a  resolution  to  reject  from  the  Electoral 
College  the  states  that  had  seceded  —  The  case  of  Louisiana  dis- 


IT  was  a  week  only  before  the  day  fixed  for  the 
counting  of  the  votes  cast  by  the  Electoral  College  for 
President  and  Vice-President  in  the  presence  of  both 
branches  of  Congress,  that  is  to  say  on  February  1, 
1865,  that  a  joint  resolution  which  had  emanated  from 
the  House  and  had  been  passed  there  was  reported 
with  amendments  to  the  Senate  by  Senator  Trumbull, 
chairman  of  the  Committee  on  the  Judiciary.  This 
resolution  declared  that  the  states  named  in  the  pre 
amble,  which  were  the  eleven  states  that  had  seceded, 
having  been  in  a  condition  of  armed  rebellion  on  the 
eighth  of  November,  1864,  the  day  of  election,  were 
not  entitled  to  representation  in  the  College,  and  that 
no  electoral  votes  should  be  received  or  counted  from 
these  states.1 

It  was  evident  at  the  very  outset  that  the  case  of 
Louisiana  was  going  to  be  the  main  theme  of  discus 
sion,  for  Ten  Eyck  at  once  moved  to  strike  out  of  the 
preamble  the  word  "  Louisiana."  If  this  had  been 
agreed  to  by  both  Houses,  the  effect  would  have  been 

1  Cong.  Globe,  533  et  seq. 


TEN  EYCK'S  MOTION.  375 

that  the  new  government  of  this  state,  lately  organized 
by  General  Banks  at  the  instance  of  the  President,  and 
under  the  mode  laid  down  in  the  Amnesty  Proclama 
tion,  would  have  been  recognized,  and  that  the  elec 
toral  vote  of  this  state  would-  have  been  counted,  and 
would  have  had  the  same  force  as  the  vote  of  any  other 
state.  Ten  Eyck  frankly  avowed  that  this  was  the 
object  of  his  motion,  which  was  the  question  pending 
before  the  Senate.  But  the  Committee  on  the  Judi 
ciary,  when  they  reported  back  the  joint  resolution, 
had  accompanied  it  with  an  amendment,  by  which  a 
statement  that  these  states  had  continued  in  armed 
rebellion  for  more  than  three  years  was  to  be  stricken 
out,  and  another  substituted  to  the  effect  that  "no 
valid  election  for  President  and  Vice-President  of  the 
United  States,  according  to  the  Constitution  and  laws 
thereof,  was  held  therein  on  said  day."  The  object  of 
this  amendment,  according  to  Trumbull,  was  to  avoid 
as  far  as  possible  any  committal  upon  the  subject 
which  Ten  Eyck's  motion  brought  up,  and  to  put  the 
preamble  in  such  form  that,  if  it  were  adopted  and 
the  resolution  passed,  Congress  would  not  have  decided 
thereby  whether  Louisiana  was  in  or  out  of  the  Union  ; 
whether  she  was  or  was  not  a  state.  For  himself,  he 
did  not  believe  that  there  could  have  been  an  election 
in  Louisiana  according  to  the  Constitution  and  laws 
of  the  United  States,  when  a  very  considerable  portion 
of  the  state  was  overrun  by  the  enemy,  and  the  legal 
voters  had  no  opportunity  to  vote  one  way  or  the 
other.  Moreover,  the  proclamation  declaring  the  in 
habitants  of  that  state  to  be  in  rebellion  had  never 
been  recalled,  and,  accordingly,  these  inhabitants  were 
presumably  still  in  a  condition  of  insurrection.  Ten 


376  WHAT  CONSTITUTES  A   STATE? 

Eyck,  in  response,  took  the  ground  that  these  states 
were  still  in  the  Union,  but  that  their  governments 
were  in  abeyance,  and  that  whenever  these  states,  by 
the  aid  of  the  general  government,  or  by  the  efforts  of 
their  own  people,  set  their  governments  in  action  anew, 
it  was  proper  to  extend  to  them  all  the  rights  which 
the  loyal  people  of  a  loyal  state  were  entitled  to.  A 
committal  of  Congress  should  not  be  had  against  the 
interest  of  a  state  any  more  than  in  its  favor ;  and 
the  adoption  of  his  amendment,  he  admitted,  would  be 
a  declaration  by  Congress  that  Louisiana  was  in  a  con 
dition  to  perform  all  the  functions  of  a  state  govern 
ment,  and  to  appoint  state  officers  and  senators  and 
members  of  the  national  House  of  Representatives  : 
but  the  same  question  was  involved  in  the  resolution, 
and  it  would  be  determined  against  the  state  if  the 
joint  resolution  passed  as  it  stood,  for  Congress  would 
then  decide  that  this  state  was  at  that  day  in  a  condi 
tion  of  rebellion  such  as  to  deprive  it  of  all  the  powers, 
rights,  and  privileges  of  a  state. 

Howe  followed  in  support  of  Ten  Eyck's  proposi 
tion  to  except  Louisiana  from  the  rejected  states,  but 
for  the  reason  contrary  to  the  one  given  by  Ten  Eyck ; 
because,  on  account  of  rebellion,  "  the  American  state 
was  not  there,"  and  that  it  became  the  duty  of  Con 
gress,  in  consequence,  to  supply  the  bereaved  people 
with  a  government.  In  taking  this  view  he  evidently 
coincided  with  Judge  Peabody. 

On  the  next  day,  Doolittle  appeared  on  the  scene, 
especially  charged  with  the  care  of  the  Presidential 
Plan  of  Reconstruction  and  its  defence  upon  the  floor 
of  the  Senate  against  any  and  all  comers.  His  com 
rade,  Trumbull,  with  wise  prevision,  it  has  been  seen, 


LOUISIANA'S  ELECTORAL    VOTE.  377 

had  done  his  best  to  forestall  adverse  action  upon  the 
Louisiana  case,  for  such  a  mishap  would  jeopardize 
the  future  of  the  Presidential  Plan  by  subjecting  it  to 
what  virtually  would  be  a  vote  of  lack  of  confidence. 
Whether  the  vote  of  Louisiana  were  counted  or  no, 
the  result  would  not  be  affected  one  way  or  the  other ; 
Lincoln  was  sure  to  be  President,  and  the  main  thing 
was  to  insure  the  future  of  the  Presidential  Plan ;  the 
present  was  secure.  To  imperil  the  future  by  a  fruit 
less  decision  in  the  present,  that,  on  the  eighth  of 
November,  1864,  Louisiana  was  in  a  proper  and  law 
ful  condition  to  vote  for  President,  was  to  reenact  the 
part  of  the  dog  in  the  fable  ;  it  was  bad  politics.  Ac 
cordingly,  he  avoided  all  question  and  any  decision 
upon  what  he  must  have  felt  could  stand  little  scrutiny, 
by  including  the  name  of  Louisiana  among  the  rejected 
votes  and  thus  keeping  her  in  the  place  she  had  occu 
pied  during  the  rebellion.  Why,  in  taking  this  course, 
he  and  Doolittle  failed  to  act  in  concert,  as  was  usual, 
does  not  appear,  but  on  February  second,  Doolittle 
gained  the  floor,  and  proceeded  to  argue  away  the 
existence  of  any  power  in  Congress  over  the  counting 
of  these  electoral  votes.  Of  course,  if  Congress  had 
no  power  over  the  count,  the  votes  would  have  to  be 
received  and  counted  as  they  had  been  returned,  and 
no  right  of  rejection  would  exist  in  Congress  :  the 
federal  legislature  could  neither  annul  votes  nor  de 
clare  void  votes  that  had  been  given.  Hale  denied  the 
correctness  of  this  position  emphatically,  and  thought 
that  it  would  be  one  of  the  strangest  things  that  had 
ever  occurred  on  earth,  if  Congress  had  not  such 
power ;  whereupon  Doolittle  averred  that  Hale  had 
stated  his  case  for  him  too  strongly,  and  that  Congress 


378  WHAT  CONSTITUTES  A   STATE? 

did  have  power  over  the  subject,  but  that  it  was  re 
stricted,  and  was  limited  to  power  over  the  question  of 
choosing  electors.  Congress  was  not  the  tribunal  to 
which  the  question  of  counting  was  referred,  but  the 
President  of  the  United  States  Senate  presiding  over 
the  joint  convention  of  both  Houses  had  been  consti 
tuted  such  tribunal.  A  slight  manifestation  of  feeling 
between  Doolittle  and  Trumbull  occurred,  and  the 
latter  expressed  his  regret  at  seeing  Doolittle  exhibit 
it ;  a  manifestation  which  Doolittle  disclaimed.  The 
debate  proceeded,  and  Collamer  proposed  to  settle  the 
matter  by  an  amendment  to  the  effect  that  the  people 
of  no  state  declared  in  insurrection  should  be  regarded 
as  empowered  to  choose  electors  until  a  law  of  the 
United  States  had  declared  this  insurrection  to  have 
ceased.  Reverdy  Johnson  agreed  with  Trumbull  and 
Collamer  that  the  authority  of  Congress  over  the  sub 
ject  existed,  and  so  did  Howard,  who  looked  upon  it 
as  the  bounden  duty  of  Congress  to  keep  out  of  the 
Union  every  one  of  these  eleven  seceded  states  until  it 
had  become  evident  that  there  was  a  clear,  absolute 
majority  of  the  voters  in  each  state  "  friendly  to  the 
government  of  the  United  States ;  "  a  phrase  suscep 
tible  to  divers  interpretations,  when  it  is  considered 
that  Howard  was  one  of  those  who,  like  Wilson,  had 
no  faith  in  the  loyalty  of  any  one  who  did  not  vote 
the  Republican  ticket. 

In  the  warmth  of  the  debate,  a  good  many  ques 
tions  foreign  to  the  issue,  as  Davis  complained,  had 
been  dragged  into  discussion.  How  the  vote  was  to 
be  counted,  and  by  whom,  were  subjects  much  dis 
cussed.  Powell,  nevertheless,  stuck  to  the  subject  of 
Louisiana,  and  strenuously  opposed  Ten  Eyck's  mo- 


WADE   VERSUS  LINCOLN.  379 

tion,  and  also  Collamer's  substitute,  and  scored  Gen 
eral  Banks  unmercifully.  The  most  pungent  speech 
of  the  debate  was,  without  question,  Benjamin 
Wade's.  This  senator  was  a  blunt  man,  and  when 
ever  he  spoke,  he  spoke  to  the  point  and  did  not 
mince  matters.  He  was  a  man  of  strong  passion, 
was  pugnacious,  and  one  who  did  not  easily  forget  an 
injury  or  forego  an  opportunity  to  strike  back.  He  was 
the  senator  who  had  united  with  Henry  Winter  Davis 
in  giving  to  the  world  the  manifesto  against  the  Presi 
dent  when  he  had  pocketed  the  Reconstruction  Bill  at 
the  end  of  the  preceding  session.  He  never  forgave 
Lincoln  for  that  act ;  he  did  not  fear  him,  he  would 
not  court  favor  of  him,  and  he  did  not  hesitate  to 
give  his  opinion  about  the  President  whenever  he  had 
the  chance  to  do  so.  This  debate  offered  him  an 
opportunity  to  unbosom  himself,  and  accordingly  he 
took  the  floor. 

He  began  by  saying  that,  a  year  before,  Congress, 
wisely  anticipating  these  questions,  had  framed  a  bill 
with  which  to  meet  them,  but  that  it  had  been  pock 
eted  by  the  President.  This  the  President  had  done 
in  defence  of  his  Amnesty  Proclamation,  declaring 
that  when  one  tenth  part  of  the  people  of  a  state 
would  come  back,  they  should  be  recognized  as  a  state, 
—  a  proposition  the  most  absurd  and  impracticable 
that  ever  had  haunted  the  imagination  of  a  statesman. 
In  this  the  President  had  cut  loose  from  the  principle 
of  the  rule  of  the  majority,  and  there  was  nothing 
left ;  all  was  open  sea,  all  anarchy,  all  confusion,  and 
this  proclamation  was  the  most  contentious,  the  most 
anarchical,  the  most  dangerous  proposition  that  was 
ever  put  forth  for  the  government  of  a  free  people. 


380  WHAT  CONSTITUTES  A   STATE? 

Could  any  portion  of  the  territory  of  a  state  attempt 
to  govern  the  whole  ?  Could  the  Senate  be  so  blind 
as  to  suppose  that,  when  these  state  officers  were 
clothed  by  military  power  with  authority  to  govern, 
it  was  a  republican  government  ?  It  was  just  as 
much  a  military  government  after  as  it  had  been 
before  the  farce  of  selecting  those  officers  was  gone 
through  with.  There  was  the  military  governor  ;  had 
he  ever  been  withdrawn  from  Louisiana  ?  Or,  if  an 
other  had  been  substituted,  by  whom  had  he  been 
substituted  ?  By  the  commander-in-chief  of  all  the 
armies  of  the  United  States.  When  the  mandate 
went  forth  from  the  President  to  Halm,  "  Be  gov 
ernor  of  that  state,"  he  did  not  consult  the  Senate, 
he  did  not  consult  anybody  in  particular,  but  the 
mandate  issued  from  the  President  of  the  United 
States  unaided,  unknown,  uncounseled  by  anybody. 

"  You  need  not  talk  to  me  about  your  one  tenth," 
he  exclaimed ;  "  if  a  majority  of  a  state  was  rebellious, 
a  free  government  in  that  state  is  impossible.  Was 
there  any  principle  of  free  government  that  had  de 
cided  that  anything  less  than  a  majority  of  the  people, 
or  voters,  of  a  state  could  govern  its  destinies  ?  I 
speak  not  of  the  farce  of  a  civil  government  over 
shadowed  by  a  military  governor,  a  wheel  within  a 
wheel,  a  military  government  dominating  your  whole 
political  community,  and  inside  of  that  and  under  it 
and  subordinate  to  it,  a  civil  government  pretending 
to  be  a  free  government !  I  say  it  is  a  farce  ;  it  is 
unworthy  of  the  American  Senate  to  give  it  a  mo 
ment's  consideration.  .  .  .  It  is  a  government  of  false 
pretences.  Withdraw  your  army  from  Louisiana 
to-day,  and  what  would  be  its  condition  ?  Have  you 


JEALOUSY  OF  MILITARY  POWER.       381 

any  evidence  as  to  what  that  people  would  do  to-mor 
row,  if  you  withdrew  all  your  military  force  from 
there  ?  Have  they  voted,  have  they  given  any  evi 
dence  to  show  that  they  are  loyal  to  the  government 
of  the  United  States  ?  Not  a  lisp  of  it,  not  a  word 
of  it.  More  than  four  fifths  of  the  territory  of  that 
state  now  is  trampled  down  beneath  the  feet  of  mili 
tary  power,  just  where  it  ought  to  be  for  its  rebellion, 
and  you  dare  not  withdraw  your  armies  from  there : 
and  do  you  talk  of  free  republican  state  government 
there  !  Sir,  you  cannot  have  it." 

Doolittle  weakly  interposed,  but  was  silenced  in  a 
moment  by  the  provoked  orator,  who,  like  Henry 
Winter  Davis,  was  astonished  to  find  any  difference 
of  opinion  in  the  body  that  had  so  unanimously 
passed  the  Reconstruction  Bill  less  than  a  year  before. 
Had  anything  occurred  to  change  their  opinions? 
Could  they  really  claim  that  that  portion  of  Louisiana 
was  free  even  where  their  army  was  ?  and  he  sarcas 
tically  insinuated  that  the  Border  states  themselves 
were  under  military  domination,  for  the  Senator  from 
Kentucky,  Powell,  had  told  them  that  they  did  not 
govern  there  according  to  the  laws  of  Kentucky,  and 
that  they  did  not  even  found  the  basis  of  government 
upon  the  laws  of  that  state,  but  that  the  military 
authorities  regulated  the  elective  franchise  there. 
Was  there  any  freedom  in  that  ? 

Wade  evidently  feared  the  extension  of  presiden 
tial  usurpation  over  the  Border  states,  and,  perhaps, 
over  the  whole  country,  for  he  did  not  hesitate  to  say : 
"  I  make  these  observations,  because  I  am  exceedingly 
jealous  of  military  power,  and  I  never  will  consent 
that  a  people  predominated  over  by  a  hostile  military 


382  WHAT  CONSTITUTES  A   STATE f 

power  shall  found  an  American  republican  state. 
They  cannot  do  it.  To  do  it,  they  must  be  as  free 
as  air,  and  until  they  are  in  that  condition,  it  is  im 
possible  to  have  a  free  government  there.  .  .  .  Let 
us  settle  now  and  forever  the  principle,  that  the  Presi 
dent  of  the  United  States  cannot  in  times  of  civil 
war,  whenever  he  happens  to  have  an  army  in  a  state, 
improvise  by  military  force  a  legislature,  and  call  it 
the  power  of  a  state,  in  such  a  sort  as  to  count  that 
semblance  in  his  favor  as  a  fact.  If  it  were  attempted, 
I  know  for  one  that  I  would  not  put  up  with  it." 

There  were  two  things  which  seemed  to  weigh  upon 
Wade's  mind(VOne  was,  that  a  result  of  leaving  the 
reorganization  of  a  state  to  a  mere  fraction  like  one 
tenth  might  be,  indeed  would  be,  to  invite  eventually 
the  political  destruction  of  a  feeble  minority  by  the 
nine  tenths,  when  the  return  of  peace  had  reinstated 
the  majority.  "  When  the  general  government  aban 
dons  them,"  said  he,  "  when  it  leaves  the  one  tenth  in 
the  hands  and  under  the  domination  of  the  nine 
tenths,  what  will  be  their  condition  ?  "  This  appre 
hension,  he  declared,  was  shared  by  Andrew  Johnson, 
the  Vice-President  elect,  and  by  other  Unionists  in 
the  southern  states.  This  calamity,  he  insisted,  had 
been  provided  against  by  the  Reconstruction  Bill, 
which  had  required  a  majority  of  the  loyal  people 
to  effect  the  reorganization. 

The  other  thing  which  predominated  in  Wade's 
speech  was  dread  of  presidential  usurpation.  He  did 
not  delude  himself  with  the  notion  that  the  aggrand 
izement  of  power  was  distasteful  to  the  President,  or 
that  he  had  assumed  it  unwillingly  and  would  as 
willingly  lay  it  down  the  moment  the  necessity  for 


THE  PRETEXT  OF  NECESSITY.  383 

it  had  passed  away.  The  pretext  of  necessity  and 
the  pushing  away  the  crown  could  not  deceive  him 
in  view  of  Lincoln's  secret  letter  to  Banks,  and  his 
curt  investiture  of  Governor  Hahn  with  military  power 
after  this  governor's  election  and  inauguration.  Nor 
did  he  overlook  Powell's  allusion  to  the  military  rule 
of  Kentucky,  a  Border  state,  and  one  separated  from 
his  own  state  by  the  river  Ohio  only.  This  was  get 
ting  too  near  home. 

As  soon  as  Wade  halted  for  breath,  Wright  moved 
to  adjourn,  but  the  Senate  refused  to  do  so,  and  a 
running  colloquy  ensued  until  another  motion  to 
adjourn  was  made,  which  in  its  turn  was  voted  down. 
A  motion  was  then  made  to  postpone  this  joint  reso 
lution  indefinitely,  but  the  Senate  had  no  mind  at 
this  stage  to  get  rid  of  the  question ;  they  preferred 
to  meet  it,  and  so  they  refused  to  postpone.  Having 
done  this,  the  Senate  adjourned. 

When  the  pending  question  came  up  as  the  special 
business  of  the  next  day,  Doolittle  took  the  floor,  and 
it  was  evident  from  his  statement  that  the  pending 
question  would  have  no  practical  effect  whatever  in 
disposing  of  the  presidential  canvass,  and  that  there 
was  no  necessity  for  fixing  the  law  that  day  more 
than  at  any  time  within  the  next  four  years,  that 
perhaps  he  had  become  convinced  overnight  of  Trum- 
bull's  sagacity  in  letting  the  sleeping  dog  lie.  He 
set  bravely  to  work,  but  it  was  not  long  before  he  lost 
his  temper,  and  coupling  together  Wade,  the  radical, 
with  Powell,  the  conservative  and  strict-con  struetioii- 
ist,  he  remarked  upon  the  strange  spectacle  presented 
when  the  two  extremes  of  the  Senate  came  together 
in  this  way.  "  One  would  suppose,"  he  cried,  "  that 


384  WHAT  CONSTITUTES  A   STATE? 

Pilate  and  Herod  had  joined  hands  both  to  attack 
the  administration  in  its  policy  on  this  subject,  and 
to  see  if  they  could  crucify  the  free  state  of  Louisi 
ana." 

Doolittle  was  one  of  the  most  accomplished  orators 
and  debaters  then  in  the  Senate:  he  was  withal  a 
fair  man,  self-controlled,  and  one  who  respected  him 
self  and  others.  But  even  such  men  cannot  always 
maintain  their  balance,  and  he  lost  his  when  he  lost 
his  temper.  His  taunt  brought  him  no  good,  for 
Powell  retorted  that  he  did  not  know  whether  the 
honorable  senator  had  likened  him  to  Herod  or  to 
Pilate,  but  the  senator  had  said  that  the  Senator 
from  Kentucky  and  the  Senator  from  Ohio,  like 
Herod  and  Pilate,  desired  to  crucify  the  state  of 
Louisiana.  He  was  not  aware  before  that  Herod 
had  much  to  do  with  the  crucifixion.  He  knew  that 
Pontius  Pilate  judged  on  that  occasion,  and  that  his 
judgments  had  been  deemed  infamous.  He  had  told 
the  Senator  from  Ohio  that  he  might  take  either  ;  if 
he  thought  he  had  been  likened  to  Pilate,  he  might 
defend  Pilate,  and  if  he  thought  that  he,  Powell,  had 
been  likened  to  Herod,  he  would  stand  on  that :  but  the 
Senator  from  Ohio  had  answered  that  he  did  not  care 
a  toss  of  the  copper  which.  Here  the  Senate  forgot 
its  gravity  and  roared ;  while  Powell  added  that,  if 
the  comparison  should  be  applied  to  anybody,  it  ought 
to  be  applied  to  the  President  and  General  Banks. 

Powell,  who  had  already  made  some  clear-headed 
remarks,  now  proceeded  to  discuss  the  pending  ques 
tion  at  length.  He  brought  out  the  military  character 
of  the  Louisiana  reorganization  with  great  effect, 
dwelling  particularly  upon  the  conduct  of  Banks,  and 


POWELL  DEFINES  "USURPER."  385 

he  exemplified  the  dangers  of  military  interference  by 
showing  that  Banks  had  even  deliberately  exceeded 
his  orders :  an  excess  of  zeal  which,  it  was  significant, 
had  not  been  rebuked  by  his  superior.  He  had,  too, 
something  to  say  of  the  usurpation  of  the  President, 
and,  at  a  time  when  this  and  kindred  words  were  used 
with  looseness  and  indefiniteness,  to  characterize  the 
President's  action,  he  did  the  political  world  a  service 
by  defining  the  word  "  usurper,"  and  by  indicating  its 
proper  application.  He  divested  it  of  its  quality  as 
a  malignant  epithet,  and  gave  it  its  proper  significa 
tion.  "  I  use  the  word  '  usurper,'  to  indicate  those 
who  administer  the  functions  of  their  offices  in  viola 
tion  of  law.  It  was  a  maxim  of  the  Athenians  that 
all  who  administered  the  functions  of  their  offices  in 
violation  of  law  were  usurpers.  It  is  in  that  sense 
that  I  use  the  term.  However  good  their  intentions 
may  have  been,  I  say  that  in  their  [the  President 
and  General  Banks]  exercise  of  power  in  Louisiana 
they  overthrew  the  Constitution  and  laws  of  their 
country  which  they  had  sworn  to  support ;  and  hence, 
in  my  judgment,  they  are  technically  usurpers." 

It  is  noticeable  throughout  these  debates  in  the 
Senate  that,  with  the  exception  of  general  denials,  and 
these  even  rarely  expressed,  there  was  no  attempt  to 
contradict  the  reiterated  accusations  of  presidential 
usurpation.  It  is  true  that  these  accusations  were 
frequently  made  in  the  excitement  of  the  moment, 
when  it  would  have  invested  them  with  gravity  too 
great  had  the  orderly  .course  of  debate  been  inter 
rupted  in  order  to  answer  them.  On  the  other  hand, 
they  were  made  usually  with  all  the  seriousness  and 
earnestness  the  subject  demanded  ;  not  in  a  captious 


386  WHAT  CONSTITUTES  A   STATE? 

spirit,  but  with  the  most  sober  sense  of  responsibility 
and  with  pressing  warning,  and  yet,  except  such  de 
nials  as  Doolittle  afforded  an  instance  of  in  this  very 
debate,  mere  counter-assertions  in  fact,  they  were 
allowed  to  pass  without  answer.  The  inference  is, 
that  as  the  House  was  silenced  on  this  subject  by  the 
bitter  sarcasm  of  Thaddeus  Stevens  when  a  member 
was  bold  enough  to  claim  constitutionality  for  the 
President's  interference  in  southern  reconstruction,  so 
the  Senate  was  silenced  by  the  self-evident  truth  which 
these  accusations  carried  with  them.1  They  could  not 
be  controverted,  for  the  repudiation  of  the  principle 
that  the  will  of  the  majority,  lawfully  exercised  and 
expressed,  shall  rule,  and  of  the  principle  that  the 
military  power  must  be  subordinate  to  civil  govern 
ment,  —  this  was  unwarranted  by  the  Constitution  or 
by  any  principle  of  representative  democracy,  and, 
under  Powell's  definition,  which  will  hardly  be  gain 
said,  the  course  of  the  President  must  be  considered 
one  in  which  powers  were  usurped. 

In  this  debate  Doolittle  took  positive  ground  in  fa 
vor  of  the  doctrine  that  the  states  in  rebellion  were  not 
out  of  the  Union.  Indeed,  he  went  out  of  his  way  to 
controvert  "  the  fine-spun  theories  advocated  in  certain 
other  quarters,"  that  such  states,  by  virtue  of  their 
insurrection,  had  ceased  to  exist  as  states  of  the 
Union.2  He  was  very  denunciatory  of  this  doctrine, 

JIn  his  speech  on  the  recognition  of  Louisiana  (Cong1.  Globe,  2d 
Sess.  38th  Cong.,  1061)  Powell  declared,  without  contradiction,  that 
he  had  heard  the  Amnesty  Proclamation  commented  upon  in  the 
Senate  by  numerous  senators,  and  had  heard  no  senator  maintain 
that  the  President  could  legitimately  exercise  the  power  he  had  as 
sumed  in  that  proclamation. 

2  Cong.  Globe,  p.  578. 


THE  SOUTHERN  STATES  DEBARRED.   387 

maintaining  that  it  was  "  one  huge,  infernal,  constitu 
tional  lie,  that  would  stamp  all  our  conduct  from  the 
beginning  as  murder,  and  cover  us  all  over  with  blood. 
And  I  tell  you  that,  whatever  fine-spun  theories 
politicians  may  adopt  here  at  Washington  or  elsewhere, 
when  the  Convention  came  to  meet  at  Baltimore, 
freshly  representing  the  people  of  the  United  States, 
they  trampled  the  miserable  humbug  under  their  feet 
by  nominating  Andrew  Johnson,  of  Tennessee,  as 
Vice-President  of  the  United  States  —  Tennessee, 
still  a  state  of  the  United  States." 

Such  was  Doolittle's  opinion  of  the  principle  under 
lying  the  relations  of  the  seceded  states  to  the  general 
government,  and  such,  in  his  view,  was  the  motive 
which  the  people  had  for  nominating  Andrew  Johnson, 
whose  great  ally  and  henchman  he  was  soon  to  be. 
It  is  singular  that  Sumner,  who  was  to  become  John 
son's  unrelenting  adversary,  took  this  occasion  to  give 
his  opinion  of  his  former  co-member  of  the  Senate,  who 
was  then  Vice-President  elect.  It  was  to  this  effect :  "  I 
presume  nobody  ever  questioned  that  Andrew  Johnson 
was  a  great  and  loyal  citizen  of  the  United  States." 

Ten  Eyck's  motion  was  lost,1  and  finally  the  joint 
resolution  was  passed  on  February  fourth,2  and  was 
returned  to  the  House,  where  the  Speaker  signed  it.3 
The  eleven  states,  therefore,  were  debarred  from  repre 
sentation  in  the  Electoral  College.  Nevertheless,  the 
end  was  not  yet,  for,  though  the  President  returned 
the  joint  resolution  with  his  signature,  he  accompanied 
it  with  a  message  which  gave  his  adversaries  on  the 

1  By  a  vote  of  22  to  15 ;  not  voting1,  14. 

2  By  a  vote  of  29  to  10  ;  absent,  12. 

3  February  6, 1865. 


388  WHAT  CONSTITUTES  A   STATE? 

floors  of  Congress  fresh  occasion  to  accuse  him  of  dis 
respect  towards  the  legislative  branch  of  the  gov 
ernment.  He  said  that  he  had  signed  the  resolution 
in  deference  to  the  views  of  Congress  implied  in  its 
passage  and  presentation  to  him.  In  his  own  view, 
however,  the  convened  Houses  of  Congress  had  com 
plete  "power  to  exclude  from  a  count  all  electoral  votes 
deemed  by  them  to  be  illegal ;  and  that  it  was  not 
competent  for  the  Executive  to  defeat  or  obstruct  that 
power  by  a  veto,  as  would  be  the  case  if  his  action 
were  at  all  essential  in  the  matter.  He  disclaimed  all 
right  of  the  Executive  to  interfere  in  any  way  in  the 
matter  of  canvassing  or  counting  electoral  votes,  and 
he  also  denied  that,  by  signing  the  resolution,  he  had 
expressed  any  opinion  on  the  recitals  of  the  preamble, 
or  any  judgment  of  his  own  upon  the  subject  of  the 
resolution. 

It  was  evident  that  the  President  had  taken  the 
matter  sorely,  and  the  supposition  was  that  he  re 
garded  the  joint  resolution  as  a  legislative  censure  of 
his  plan  of  reconstruction  ;  but  that,  as  Congress  had 
undertaken  to  convey  to  him  their  opinion  of  him  and 
his  methods,  he  had  embraced  the  same  occasion  to 
show  them  that  his  indifference  towards  what  they 
said  and  did  was  as  great  then  as  it  was  on  the  day  he 
pocketed  the  Eeconstruction  Bill.  For  the  Republi 
cans  to  express  their  feelings  would  be  to  make  public 
their  family  quarrel.  Accordingly,  they  remained 
dumb,  while  Reverdy  Johnson,  whose  position  as  a 
Democrat  imposed  no  restrictions  upon  him  in  this 
respect,  gave  utterance  to  the  general  feeling  on  what 
he  characterized  the  extraordinary  course  of  the  Presi 
dent,  and  a  reflection  upon  the  Senate  and  Congress. 


THE  PRESIDENT  READS  A   LECTURE.     389 

If  the  President  was  sincere  in  thinking  that  it  was 
not  a  subject  for  the  legislation  of  Congress,  he  ought 
to  have  disapproved  the  resolution,  but  in  the  speaker's 
judgment  the  President  was  entirely  wrong  in  point  of 
law.  Johnson  recalled  the  manifesto  of  the  President 
after  pocketing  the  Reconstruction  Bill,  in  which  he 
had  said  that  there  were  some  good  things  in  the  bill 
passed  by  Congress,  and  some  bad  ones  ;  and  that  as 
far  as  they  were  good  he  would  act  upon  them,  but 
as  far  as  they  were  not  as  good  as  the  things  he  him 
self  proposed,  he  would  be  governed  by  his  own  judg 
ment.  It  seemed  to  Johnson  that  the  President  had 
read  Congress  a  lecture  —  and  so  it  seemed  to  the 
world,  and  thus  for  the  second  time  in  seven  months, 
or  in  a  period  really  of  sixty  days  only  of  congressional 
session,  Lincoln  had  snubbed  the  legislature.  The 
Executive  had  become  too  strong  for  the  legislative 
branch  of  the  government ;  he  felt  his  power,  and  his 
contempt  of  the  representatives  of  the  states  and  the 
people  grew  apace ;  in  fact,  he  made  no  attempt  at 
concealment.  As  for  the  people,  everything  that  the 
President  did  pleased  them :  they  looked  not  to  con 
clusions,  and  what  could  be  more  amusing  than  to  see 
"  Old  Abe  get  ahead  of  the  politicians  "  ? 


CHAPTER  XX. 

CONCLUSION. 

THIS  account  of  the  President's  course  with  reference 
to  slavery  and  the  seceded  states,  the  opinions  held 
by  the  dominant  party  in  Congress  respecting  the  re 
lations  of  the  federal  government  towards  the  seceded 
states,  and  the  short  life  and  untimely  fate  of  the 
Reconstruction  Bill,  are  sufficient  to  indicate  the 
departure  of  the  Republicans  from  the  position  they 
occupied  at  the  outbreak  of  hostilities,  and  their  repu 
diation  of  the  sentiments  expressed  in  the  President's 
Inaugural  Address  and  First  Message,  and  by  the  vote 
of  Congress  on  the  Crittenden  resolution  in  July,  1861. 
This  rupture  with  old  doctrine  had  been  speedy,  and 
this  repudiation  had  been  emphatic :  indeed,  the  time 
came  when  every  Republican  member  that  had  been  in 
Congress  during  1861  seemed  to  make  it  a  point,  in 
season  and  out  of  season,  to  repudiate  his  vote  on  this 
resolution  ;  while  every  new  member  made  haste  to 
show  to  the  world  how  truly  he  was  "  abreast  of  the 
times,"  or  in  advance  of  them. 

The  secret  of  this  change  in  the  temper  and  senti 
ment  of  the  Republican  party  is  to  be  found  in  the 
change  of  temper  and  sentiment  which  the  people 
themselves  had  undergone  as  the  war  continued.  Dur 
ing  the  first  part  of  the  war,  the  North  had  to  sustain 
a  succession  of  reverses  in  the  field.  Never  in  the 


CHANGE   OF  NORTHERN  TEMPER.         391 

history  of  any  modern  people  can  there  be  found  so 
many  and  so  great  failures  as  appeared,  one  after  an 
other,  among  the  federal  commanders  of  armies.  They 
followed  thick  and  fast,  and  were  of  all  species  of 
incompetency.  The  Army  Kegister  seemed  to  have 
been  ransacked  for  weak  material,  and  the  people,  as 
they  saw  army  after  army  paralyzed  or  crippled,  at 
last  lost  patience  and  became  soured  and  vengeful. 
They  became  soured  towards  the  authorities  at  Wash 
ington,  executive  and  legislative,  and  vengeful  towards 
the  South.  The  spectacle  of  vast  numbers  of  northern 
soldiers  rotting  in  southern  prisons,  with  their  own 
government  apparently  indifferent  to  their  fate,  exas 
perated  them  beyond  measure.  It  was  natural,  for  it 
was  easier  and  safer,  to  lay  all  the  blame  at  the  door 
of  the  rebels,  and  to  regard  them  as  enemies  to  be  pun 
ished  after  success  had  placed  it  in  the  power  of  the 
North  to  do  so.  This  object  attained,  it  mattered  little 
to  the  unthinking  masses  whether  the  President  con 
sidered  the  rebellious  states  in  the  Union,  or  whether 
Stevens  looked  upon  them  as  out  of  the  Union. 

The  Republican  party  was  not  at  heart  a  constitu 
tional  party.  There  stood  the  Constitution,  and  it 
would  not  down  :  but  it  could  be  used,  and  when  not 
used  for  their  purposes,  it  could  be,  for  the  moment, 
argued  away  or  ignored.  Nothing  more  clearly  re 
veals  the  unadaptability  of  this  party  to  the  Constitu 
tion  than  its  manner  of  treating  that  instrument  when 
it  came  to  ascertain  and  settle  the  relations  of  the  se 
ceded  states  to  the  federal  government.  The  harmony 
which  conformity  with  a  common  standard  character 
izes  was  wanting  ;  three  distinct  and  conflicting  views 
of  the  situation  appeared,  and  three  separate  and  dis- 


392       THREE    VIEWS   OF  THE  SITUATION. 

tinct  plans  of  reconstruction  struggled  for  supremacy 
within  the  limits  of  this  party.  There  was  the  Presi 
dential  view,  which,  on  the  face  of  it,  could  not  have 
had  its  origin  in  any  provision  of  the  Constitution,  for 
a  new  government  was  to  be  imposed  upon  the  state, 
and  not  created  by  the  people  of  the  state  ;  it  was 
not,  therefore,  a  popular  government :  it  was  to  be  cre 
ated,  ostensibly,  by  a  small  fraction  of  the  people,  one 
tenth  ;  it  could  not,  therefore,  be  a  government  of  the 
majority,  nor  a  republican  form  of  government :  and 
it  was  to  be  inaugurated  and  indefinitely  controlled  by 
the  army,  and  therefore  was  in  violation  of  the  consti 
tutional  principle  which  subordinates  the  military  to 
the  civil  power. 

Of  the  two  factions  which  struggled  for  supremacy 
on  the  Republican  side  of  Congress,  one  faction  main 
tained  that  the  states  were  in  the  Union  in  spite  of 
secession,  but  that  the  people  of  the  state  had,  by  their 
act  of  secession,  forfeited  their  federal  rights;  i.  e., 
that  the  states  were  still  "in,"  but  that  the  people 
were  "  out ;  "  and  the  other  that  they  were  out  of  the 
Union  by  virtue  of  secession  that  was  maintaining 
armed  resistance  successfully  enough  to  entitle  them 
to  be  considered  as  belligerents,  with  the  penalty  of 
subjection  if  worsted  in  the  fight:  neither  of  these 
factions  found  support  in  the  Constitution,  though 
one  of  them  made  use  of  the  "republican  form  of 
government"  clause.1 

If  those  who  asserted  that  these  states  were  still 
in  the  Union  had  carried  this  doctrine  to  its  logical 
conclusion,  they  would  have  had  to  concede  that,  under 
any  circumstances,  those  of  reconstruction  included, 

1  Art.  IV.  sec.  4. 


CONSERVATIVE   CONGRESSIONAL   VIEW.     393 

their  right  of  self-government  had  survived  inviolate, 
and  therefore  that  their  restoration  depended  upon 
themselves.  But  these  legislators  would  not  grant 
this  consequence,  and  were  forced  to  the  untenable  po 
sition  that,  though  these  states  were  still  members  of 
the  Federal  Union,  and  their  citizens  had  not  ceased 
to  be  citizens  of  the  United  States,  these  citizens  had 
become  incapable  of  exercising  political  privileges. 
The  defects  of  this  position  are  manifest :  in  the  first 
place,  it  involved  the  contradiction  that  while  certain 
states  were  in,  their  citizens  were  out,  and,  secondly, 
in  order  to  establish  a  constitutional  ground,  they 
adopted  for  this  purpose  the  clause  of  the  Constitution 
ordaining  that  "  the  United  States  shall  guarantee 
to  every  state  in  this  Union  a  republican  form  of 
government."  As  a  guarantee  implies  .a  preexisting 
government,  and  can  refer  only  to  such  a  one,  they 
were  met  with  the  difficulty  that  the  state  govern 
ments  in  question  were  not  only  republican,  but  that 
this  republican  form  had  been  recognized  in  every 
instance  already  by  the  United  States,  and  that,  as 
there  was  no  evidence  of  their  having  been  changed 
in  form,  this  article  could  not  apply  to  the  seceded 
states :  moreover,  the  term  "  this  Union  "  could  have 
no  reference  to  any  other  Union  than  that  formed 
under  the  Constitution,  and  from  which  these  states 
had  seceded.  It  could  not  mean  "  a  Union,"  or 
"  another  Union,"  or,  as  Doolittle  asserted,  "  a  better 
Union." 

Coupled  with  this  error  was  the  claim  of  Congress 
to  paramount  and  absolute  authority  in  matters  of 
reconstruction.  This  claim  was  founded  upon  the 
sovereignty  of  the  people  of  the  United  States,  to 


394  CLAIM   OF  CONGRESS. 

which  was  relegated  all  power  affecting  the  Union. 
But  the  reconstruction  of  a  state  is  the  creation  of  a 
state,  and  the  power  to  create  does  not  belong  to  the 
people  of  the  United  States,  but  to  the  people  of  the 
state  to  be  createcL*)  No  state  can  be  the  creature  or 
the  creator  of  its  fellows  :  New  York  cannot  impose  a 
constitution,  directly  or  indirectly,  upon  Vermont, 
and  if  New  York  cannot  do  so,  neither  can  any  other 
state,  nor,  consequently,  can  all  the  states  combined. 
The  fact  remained  as  it  always  had  existed  that,  great 
as  the  powers  of  Congress  may  be  respecting  the 
affairs  of  the  Union,  they  could  not  be  extended  so  as 
to  enlarge,  diminish,  create,  or  extinguish  a  state.  "So 
far  as  the  internal  affairs  of  the  Union  are  concerned, 
Congress  is  merely  the  legislature  of  the  Union,  and 
as  each  House  of  this  legislature  has  by  direct  provi 
sion  and  limitation  of  the  Constitution  the  right  to  be 
the  judge  of  the  elections,  returns,  and  qualifications 
of  its  own  members,  its  power  even  to  recognize  is 
limited  when  these  conditions  are  satisfactory  to  it. 
The  recognition  cannot  be  a  qualified  one,  for  when 
the  members  and  senators  take  their  seats,  the  state 
that  sent  them  has  been  recognized  unconditionally  as 
a  member  of  the  Federal  Union.  Congress  may  delay 
admission,  but  when  the  Constitution  has  been  com 
plied  with,  it  cannot  refuse  recognition  and  complete 
recognition.  Hence  the  necessity  of  Congress  to  find 
constitutional  ground  for  its  claim  to  absolute  power. 
It  had  already  set  aside  the  article  forbidding  any 
new  state  to  be  formed  or  created  within  the  jurisdic 
tion  of  any  other  state,  when  it  sanctioned  the  creation 
and  admission  of  West  Virginia.  In  casting  about  for 
ground  upon  which  it  could  proceed  to  the  absolute 


CONTRADICTIONS.  395 

control  of  the  South,  it  fixed  upon  the  section  next 
succeeding  the  one  it  had  violated  :  this  section  l  could 
be  adapted  to  the  present  circumstances  with  reason, 
only  in  case  a  republican  form  of  government  were 
adjudged  to  be  so  incompatible  with  slavery  that  this 
form  of  government  could  not  exist  where  slavery 
existed.  IJut  the  history  of  the  United  States  since 
the  Declaration  of  Independence  was  in  direct  contra 
diction  of  such  a  notion ;  for  when  independence  was 
declared,  slavery  was  a  feature  of  all  of  the  new-born 
states  save  one,  and  where  it  had  been  abolished  since 
that  time,  it  had  been  abolished  by  the  states  and  not 
by  the  federal  government,  and  then  there  could  be-  no 
question  of  each  state  having  control  over  its  own 
institutions  (the  distinguishing  feature  of  a  free  and 
independent  state,  and  of  one,  too,  which  must  be 
republican),  otherwise  it  could  not  have  been,  during 
its  whole  existence  as  a  state,  a  member  of  the  Federal 
Union.  Nor  was  the  present  less  striking  than  the 
past  in  its  contradiction  of  such  an  interpretation  of 
this  constitutional  clause,  for  how  could  slavery  be 
incompatible  with  a  republican  form  of  government 
when  it  still  remained  an  institution  in  several  of  the 
states  which  had  not  seceded,  which  were  supporting 
the  Union,  and  of  whose  republican  form  of  govern 
ment  there  was  no  question  ?  But,  to  sweep  away  any 
claim  resting  upon  such  ground,  it  is  enough  merely 
to  point  out  the  undeniable  fact  that  slavery  is  not  a 
form  of  government,  republican  or  otherwise ;  it  is  an 
institution  merely.  So  far  adrift  was  the  only  faction 
in  the  Republican  party  which  pretended  a  regard  for 
the  Constitution. 

1  Article  IV.  sec.  4. 


396        RADICAL   CONGRESSIONAL    VIEWS. 

Much  more  manly  and  less  dangerous  were  those 
who  asserted  that  the  seceded  states,  by  the  act  of 
secession  and  by  maintaining  this  secession  by  force  of 
arms,  had  placed  themselves  outside  of  the  Union,  and 
had  become  mere  territories  over  which  the  federal 
government  might  exercise  the  rights  of  conquest. 
They  knew  well  that  any  policy  which  had  for  its 
foundation  the  inequality  of  the  states,  the  interfer 
ence  of  the  federal  government  in  the  affairs  of  a  state 
within  the  Union,  the  subordination  of  the  civil  to  the 
military  power,  and  the  abrogation  of  the  rule  of  the 
majority,  had  no  countenance  from  anything  within 
the  four  corners  of  the  Constitution,  and  was  in  viola 
tion  of  the  spirit  as  well  as  of  the  tenor  of  the  bond  of 
Union.  Accordingly,  they  did  not  hesitate  to  say  so, 
and  to  make  the  abrogation  of  the  Constitution  coor 
dinate  with  the  dissolution  of  the  Union,  which  they 
accepted  so  far  as  the  states  in  armed  resistance  were 
concerned.  This  view  placed  the  states  without  the 
pale  of  the  Union  and  the  Constitution  ;  it  made  their 
soil  conquered  territory,  to  be  disposed  of  as  the 
United  States  should  think  fit,  and  making  the  rebels 
belligerents,  handed  them  over  when  conquered  to  the 
mercy  of  the  federal  government.  This  party  exer 
cised  its  severity  under  the  cry  of  "  humanity,"  - 
war  was  to  be  waged  for  the  enfranchisement  of  the 
slave  ;  this  accomplished,  it  would  be  for  the  subjected 
whites  to  meet  the  day  of  reckoning.  It  is  due  to  the 
people  of  the  North  to  say  that,  while  this  vae  victis 
policy  swayed  many  in  its  direction,  it  never  got  pos 
session  of  their  minds  and  hearts  until  a  late  day. 
"  There 's  too  much  negro  in  it,"  and  "  blood,  after 
all,  is  thicker  than  water,"  were  common  sayings  even 


EXTRA-CONSTITUTIONALISM.  397 

among  those  upon  whom  the  war  had  fallen  with  a 
heavy  hand. 

It  is  idle  to  speak  of  constitutional  standards  and 
positions  when  discussing  those  who  openly  avowed 
their  independence  of  the  Constitution,  and  who,  like 
Stevens,  took  malign  pleasure  in  pointing  out  to  their 
less  radical  colleagues  how  these  fine-spun  theories 
were  as  much  outside  of  the  Constitution  as  were 
their  own  bold  and  radical  views.  Nothing  delighted 
Stevens,  the  Mephistopheles  of  the  Republican  party, 
more  than  to  add  to  the  confusion  of  his  colleagues 
by  taunting  them  with  their  broken-down  constitu- 
tionism,  or  to  complete  the  discomfiture  of  the  Presi 
dent's  party  by  winding  up  a  bitter  attack  on  the 
Executive  with  the  question,  where  the  President 
found  in  the  Constitution,  to  which  he  was  constantly 
alluding,  his  authority  for  creating  military  govern 
ments  at  the  South,  or  for  creating  any  government  at 
all,  and  where  the  Constitution  authorized  him,  or  any 
one  else,  to  set  the  minority  above  the  majority.1  The 
radical  faction  boldly  maintained  that  the  states  were 
out  of  the  Union ;  that,  when  conquered,  their  terri- 

1  "  Where  does  he  [the  President]  find  anything-  in  the  Constitution 
to  warrant  that  ?  If  he  must  look  there  alone  for  authority,  then  all 
these  acts  are  flagrant  usurpations,  deserving  the  condemnation  of  the 
community.  ...  I  understand  that  these  proceedings  all  take  place, 
not  under  any  pretence  of  legal  or  constitutional  right,  but  in  virtue 
of  the  laws  of  war ;  and  by  the  laws  of  nations  these  laws  are  just 
what  we  choose  to  make  them,  so  that  they  are  not  inconsistent  with 
humanity.  I  say,  then,  that  we  may  admit  West  Virginia  as  a  new 
state,  not  by  virtue  of  any  provision  of  the  Constitution,  but  under 
our  absolute  power  which  the  laws  of  war  give  us  in  the  circum 
stances  in  which  we  are  placed.  I  shall  vote  for  this  bill  upon  that 
theory,  and  upon  that  alone  ;  for  I  will  not  stultify  myself  by  sup 
posing  that  we  have  any  warrant  in  the  Constitution  for  this  proceed 
ing."  December  9,  1862  :  Cong.  Globe,  50. 


398        IRREFRAGABILITY  OF  THE   UNION. 

tories  and  the  property  of  their  citizens  were  subject 
to  confiscation,  and  that  the  citizens  themselves  were 
subject  to  punishment  at  the  will  of  the  conqueror  ; 
and  they  snapped  their  fingers  at  a  Constitution 
which  all  but  themselves  professed  to  reverence  but 
never  obeyed,  and  which  was  upheld  by  none  except 
the  "  copperheads." 

The  defectiveness  of  the  radical  view  of  the  situa 
tion,  judged  from  the  standpoint  of  the  Constitution, 
is  apparent.  That  the  Constitution  is  a  compact  irre 
fragable  by  anything  except  successful  revolution  is 
the  view  taken  by  northern  constitutionists.  Presi 
dent  Lincoln,  in  his  first  Inaugural  Address,  expressed 
this  matter  very  tersely  and  clearly  when  he  said 
that :  "  The  Union  is  perpetual.  ...  It  follows  from 
these  views  that  no  state,  upon  its  own  mere  motion, 
can  lawfully  get  out  of  the  Union ;  that  resolves  and 
ordinances  to  that  effect  are  legally  void ;  and  that 
acts  of  violence  within  any  state  or  states  against  the 
authority  of  the  United  States  are  insurrectionary  or 
revolutionary  according  to  circumstances."  This  no 
tion  was  not  confined  to  the  North ;  it  had  been  widely 
entertained  throughout  the  South,  but  there  it  was 
universally  held  also  that  no  power  existed,  by  which, 
under  the  Constitution,  the  coercion  of  one  state  by 
another,  or  by  the  federal  government,  was  permissi 
ble.  If  this  view  of  the  irrefragability  of  the  Union 
be  conceded,  it  follows  that  the  effect  given  by  the 
radical  "Republicans  in  Congress  to  the  maintenance 
of  armed  resistance  in  the  seceded  states  was  to 
grant  that  secession  had  accomplished  dissolution  of 
the  Union.  This  was  going  as  far  as  the  most  rad 
ical  secessionist  himself  could  go.  It  was  conceding 


RADICAL  SOPHISMS.  399 

the  very  point  at  issue,  and  allowing  the  secessionist 
to  depart   in  peace.     But  at  this  point  the   radical 
claimed  that   the   secessionist  was  a  belligerent,  and 
that  it  was   the   duty  of  the  federal   government   to 
subject  the  South  to  its  authority.     It  is  difficult  to 
see,  if  the  secessionist  could  abandon  our  Constitution 
and  make  a  new  one  for  himself,  and  if  his  act  of 
secession  were  rendered  valid  by  his  successful  resist 
ance  to  our  arms,  why  he  should  not  be  allowed  to  do 
so  in  his  acknowledged  right  to  "  the  pursuit  of  hap 
piness  ;  "  or  what  was  left  to  us  but  to  lay  down  our 
arms,  to  gather  the  fragments  of  the  old  Union  to 
gether,  and  provide  for  the  future  as  best  we  could. 
Granting  this  effect  of  secession,  asserted  by  the  radi 
cals,  what  right  had  we,  in  this  event,  to  pursue  the 
secessionist  with  force  of  arms  ?     "  He  was  guilty  of 
an  act  of   treason  and   rebellion,"   replied    Stevens; 
"all  these  crimes  were  committed  before  the  rebels 
became  belligerents."     If  all  these  crimes  had  been 
committed  before   the  perpetrators   became  belliger 
ents,  then  the  recognition  by  the  federal  government 
of  the  perpetrators  as  belligerents  did  away  with  their 
character  as  criminals,  and  rendered  punishment  after 
subjection  out  of  the  question.     If  to  recognize  them 
as  belligerents  was  to  lose  authority  over  the  insur 
gent  states,  what  pretext  had  the  federal  government 
to  continue  the  war,  for  authority  was  the  very  basis 
of  its  action  ;  it  was  waging  war  against  those  who,  it 
asserted,  owed  obedience  to  its  authority,  but  who  were 
ily  denying  this  authority.     "  Who  ever  heard," 
retorted  Thomas,  of  Massachusetts,  "  as  a  matter  of 
public  law,  that  the  authority  of  a  government  over 
its  rebellious  subject  was  lost  until  that  revolution  was 
successful,  —  was  a  fact  accomplished  ?  " 


400  WITHOUT  COMPASS  OR  CHART. 

Thus,  'like  his  brethren  whom  he  had  taunted,  Ste 
vens  found  himself  in  the  midst  of  contradictions,  and, 
like  them,  he  floundered  in  the  attempt  to  gain  a  solid 
footing.  The  radicals,  who  had  made  merry  over  the 
confusion  of  their  colleagues  who  still  professed  a 
regard  for  the  Constitution,  had  in  turn  to  face  the 
fact  that  throwing  the  compass  and  chart  overboard 
was  not  the  most  judicious  way  of  making  port. 


APPENDIX  A. 

THE  following  extracts  from  the  credentials  of  the  dele 
gates  from  the  different  colonies  to  the  Congress  of  1774,1 
show  how  single  was  the  object  sought,  and  how  strictly 
advisory  was  the  character  of  this  body.  It  will  be  ob 
served  that  of  governmental  powers  there  were  none :  the 
Congress  was  a  mere  Council. 

New  Hampshire.  "  To  devise,  consult,  and  adopt  such 
measures  as  may  have  the  most  likely  tendency  to  extricate 
the  colonies  from  their  present  difficulties  ;  to  secure  and 
perpetuate  their  rights,  liberties,  and  privileges,  and  to 
restore  that  peace,  harmony,  and  mutual  confidence,  which 
once  happily  subsisted  between  the  parent  country  and  her 
colonies." 

Massachusetts.  "  To  consult  on  the  present  state  of  the 
colonies,  and  the  miseries  to  which  they  are,  and  must  be 
reduced,  bv  the  operation  of  certain  acts  of  Parliament  re 
specting  America  ;  and  to  deliberate  and  determine  upon 
wise  and  proper  measures  to  be  by  them  recommended  to 
all  colonies,  for  the  recovery  and  establishment  of  their  just 
rights  and  liberties,  civil  and  religious,  and  the  restoration 
of  union  and  harmony  between  Great  Britain  and  the  colo 
nies,  most  ardently  desired  by  all  good  men." 

Rhode  Island.  "  To  consult  on  proper  measures  to  ob 
tain  a  repeal  of  the  several  acts  of  the  British  Parliament 
for  levying  tax  on  his  Majesty's  subjects  in  America  with 
out  their  consent,  and  upon  proper  measures  to  establish  the 
rights  and  liberties  of  the  colonies  upon  a  just  and  solid 
foundation,  agreeably  to  instructions  given  by  the  General 
Assembly." 

1  Journals,  I,  2-9. 


402  APPENDIX  A. 

Connecticut.  "  To  consult  and  advise  on  proper  meas 
ures  for  advancing  the  best  good  of  the  colonies,  and  such 
conference  to  report  from  time  to  time  to  the  Colonial 
House  of  Representatives." 

New  Jersey.  "  To  represent  the  colony  in  the  General 
Congress." 

Pennsylvania.  "  To  form  and  adopt  a  plan  for  the  pur 
poses  of  obtaining  redress  of  American  grievances,  ascertain 
ing  American  rights  upon  the  most  solid  and  constitutional 
principles,  and  for  establishing  that  union  and  harmony  be 
tween  Great  Britain  and  the  colonies  which  is  indispensably 
necessary  to  the  welfare  and  happiness  of  both." 

Delaware.  "  To  consult  and  advise  with  the  deputies 
from  the  other  colonies,  to  determine  upon  all  such  prudent 
and  lawful  measures  as  may  be  judged  most  expedient  for 
the  colonies  immediately  and  unitedly  to  adopt,  in  order 
to  obtain  relief  for  an  oppressed  people,  and  the  redress  of 
our  general  grievances." 

Maryland.  "  To  attend  a  general  congress,  to  effect  one 
general  plan  of  conduct  operating  on  the  commercial  con 
nection  of  the  colonies  with  the  mother  country,  for  the 
relief  of  Boston,  and  the  preservation  of  American  liberty.'' 

Virginia.  "  To  consider  of  the  most  proper  and  effectual 
manner  of  so  operating  on  the  commercial  connection  of  the 
colonies  with  the  mother  country,  as  to  procure  redress  for 
the  much  injured  province  of  Massachusetts  Bay,  to  secure 
British  America  from  the  ravage  and  ruin  of  arbitrary 
taxes,  and  speedily  to  procure  the  return  of  that  harmony 
and  union,  so  beneficial  to  the  whole  empire,  and  so  ardently 
desired  by  all  British  America." 

North  Carolina.  "  To  take  such  measures  as  they  may 
deem  prudent  to  effect  the  purpose  of  describing  with  cer 
tainty  the  rights  of  Americans,  repairing  the  breach  made 
in  those  rights,  and  for  guarding  them  for  the  future 
against  any  such  violations  done  under  the  sanction  of  public 
authority." 

South  Carolina.     "To  consider  the  acts  lately  passed, 


APPENDIX  A.  403 

and  bills  depending  in  Parliament  with  regard  to  the  port 
of  Boston,  and  the  colony  of  Massachusetts  Bay ;  which 
acts  and  bills,  in  the  precedent  and  consequences,  affect  the 
whole  Continent  of  America.  Also  the  grievances  under 
which  America  labors,  by  reason  of  the  several  acts  of  Par 
liament  that  impose  taxes  or  duties  for  raising  a  revenue, 
and  lay  unnecessary  restraints  and  burdens  on  trade ;  and 
of  the  statutes,  parliamentary  acts,  and  royal  instructions, 
which  make  an  invidious  distinction  between  his  Majesty's 
subjects  in  Great  Britain  and  America,  with  full  power  and 
authority  to  concert,  agree  to,  and  prosecute  such  legal  meas 
ures,  as  in  the  opinion  of  said  deputies,  so  to  be  assembled, 
shall  be  most  likely  to  obtain  a  repeal  of  the  said  acts,  and 
a  redress  of  those  grievances." 

Neither  New  York  nor  Georgia  was  represented  in  this 
Congress.  Delegates  from  certain  counties  of  New  York 
appeared,  but  none  representing  the  colony,  nor  elected  by 
it  as  a  colony. 

It  is  also  worthy  of  remark  that  the  Congress  of  1774 
had  no  agents  of  its  own  in  foreign  countries,  but  employed 
those  of  the  several  colonies ;  and  see  the  resolutions  for 
delivering  the  Address  to  the  King,  October  25,  1774,  and 
Letter  to  the  agents,  approved  the  following  day. 

That  the  powers  granted  to  the  delegates  to  the  second 
Congress  were  substantially  the  same  with  those  granted  to 
the  delegates  to  the  first  will  appear  from  the  following  ex 
tracts  from  their  credentials  :  — 

New  Hampshire.  "  To  consent  and  agree  to  all  meas 
ures  which  said  Congress  shall  deem  necessary  to  obtain 
redress  of  American  grievances."  Delegates  were  appointed 
by  a  convention. 

Massachusetts.  "  To  concert,  agree  upon,  direct,  and 
order  "  (in  concert  with  the  delegates  of  the  other  colonies) 
"  such  further  measures  as  to  them  shall  appear  to  be  the 
best  calculated  for  the  recovery  and  establishment  of  Ameri 
can  rights  and  liberties,  and  for  restoring  harmony  between 
Great  Britain  and  the  colonies."  Delegates  were  appointed 
by  Provincial  Congress. 


404  APPENDIX  A. 

Connecticut.  "  To  join,  consult,  and  advise  with  the  other 
colonies  in  British  America,  on  proper  measures  for  ad 
vancing  the  best  good  of  the  colonies."  Delegates  were 
appointed  by  the  Colonial  House  of  Representatives. 

Pennsylvania.  "  To  attend  the  general  Congress."  Dele 
gates  appointed  by  Provincial  Assembly. 

New  Jersey.  "  To  attend  the  Continental  Congress,  and 
to  report  their  proceedings  at  the  next  session  of  the  Gen 
eral  Assembly."  Delegates  were  appointed  by  the  Colonial 
Assembly. 

Delaware.  "  To  concert  and  agree  upon  such  further 
measures,  as  shall  appear  to  them  best  calculated  for  the 
accommodation  of  the  unhappy  differences  between  Great 
Britain  and  the  colonies  on  a  constitutional  foundation, 
which  the  House  most  ardently  wish  for,  and  that  they  re 
port  their  proceedings  to  the  next  session  of  General  As 
sembly."  Delegates  were  appointed  by  the  Assembly. 

Maryland.  "  To  consent  and  agree  to  all  measures, 
which  said  Congress  shall  deem  necessary  and  effectual  to 
obtain  a  redress  of  American  grievances  ;  and  this  province 
bind  themselves  to  execute  to  the  utmost  of  their  power,  all 
resolutions  which  the  said  Congress  may  adopt."  Delegates 
were  appointed  by  convention,  and  subsequently  approved 
by  the  General  Assembly. 

Virginia.  "  To  represent  the  colony  in  general  Congress, 
to  be  held,"  etc.  Delegates  were  appointed  by  conven 
tion. 

North  Carolina.  "  Such  powers  as  may  make  any  acts 
done  by  them,  or  any  of  them,  or  consent  given  in  behalf 
of  this  province,  obligatory  in  honor  upon  every  inhabit 
ant  thereof."  Delegates  were  appointed  by  convention  and 
approved  in  General  Assembly. 

South  Carolina.  "  To  concert,  agree  to,  and  effectually 
prosecute  such  measures  as  in  the  opinion  of  the  said  depu 
ties,  and  the  deputies  to  be  assembled,  shall  be  most  likely 
to  obtain  a  redress  of  American  grievances."  Delegates 
were  appointed  by  Provincial  Congress. 


APPENDIX  A.  405 

The  credentials  of  the  delegates  from  Rhode  Island  are 
not  to  be  found  in  the  copy  of  the  Journals  of  Congress 
from  which  the  foregoing  are  taken. 

New  York  was  not  represented  as  a  colony  in  the  Con 
gress  of  1775  ;  Georgia  was  not  represented  until  Septem 
ber,  1775.  Georgia's  delegates  were  authorized  "  to  do, 
transact,  join,  and  concur  with  the  several  delegates  from 
the  other  colonies  and  provinces  upon  the  continent,  on  all 
such  matters  and  things  as  shall  appear  eligible  and  fit,  at 
this  alarming  time,  for  the  preservation  and  defence  of  our 
rights  and  liberties,  and  for  the  restoration  of  harmony, 
upon  constitutional  principles,  between  Great  Britain  and 
America." 

Some  of  the  colonies  appointed  their  delegates  only  for 
limited  times,  at  the  expiration  of  which  they  were  replaced 
by  others,  but  without  any  material  change  in  their  powers. 
The  delegates  were,  in  all  things,  subject  to  the  orders  of 
their  respective  colonies.1 

It  is  perfectly  clear  from  these  extracts,  1,  That  each 
colony  acted  in  its  own  individual  capacity,  without  refer 
ence  to  any  other,  and  that  the  colonies  made  common  cause, 
only  because  the  principles  at  stake  affected  all  alike,  and 
the  objects  to  be  attained  were  the  same.  2.  That  each 
colony  appointed  its  own  delegates,  giving  them  precisely 
such  power  and  authority  as  suited  its  own  views.  3.  That 
no  colony  gave  any  power  or  authority  except  for  advise 
ment  only.  4.  That  the  purposes  set  forth  were,  not  to 
establish  a  new  government,  but  to  preserve  the  old,  by 
effecting  harmony  with  Great  Britain  on  constitutional 
principles.  5.  That  the  Continental  Congress  was  organ 
ized  by  the  colonies  as  such,  and  generally  through  their 
ordinary  legislatures,  and  always  with  a  careful  regard  to 
their  separate  and  independent  rights  and  powers.2 

1  Extracted  from  notes  to  Upshur's  The  Federal  Government,  ed. 
18C8,  pp.  47,  48,  49,  53,  54,  55. 

2  Adapted  from  Upshur,  p.  49  n. 


406  APPENDIX  B. 

APPENDIX  B. 

EXTRACTS    FROM    THE    KENTUCKY   AND   VIRGINIA    RESOLU 
TIONS    OF    1798   AND    1799. 

KENTUCKY  RESOLUTIONS. 

1.  Resolved,  That  the  several  states  composing  the 
United  States  of  America  are  united  on  the  principle  of 
unlimited  submission  to  their  General  Government ;  but 
that,  by  a  compact  under  the  style  and  title  of  a  Constitu 
tion  for  the  United  States,  and  of  Amendments  thereto, 
they  constituted  a  General  Government  for  special  purposes, 
—  delegated  to  that  Government  certain  definite  powers, 
reserving,  each  state  to  itself,  the  residuary  mass  of  right 
to  their  own  self-government ;  and  that  whensoever  the 
General  Government  assumes  undelegated  powers,  its  acts 
are  unauthoritative,  void,  and  of  no  force  :  that  to  this  com 
pact  each  state  acceded  as  a  state,  and  is  an  integral  party, 
its  co-states  forming,  as  to  itself,  the  other  party :  that  the 
Government  created  by  this  compact  was  not  made  the  ex 
clusive  or  final  judge  of  the  extent  of  the  powers  delegated 
to  itself  ;  since  that  would  have  made  its  discretion,  and  not 
the  Constitution,  the  measure  of  its  powers  ;  but  that,  as  in 
all  other  cases  of  compact  among  powers  having  no  common 
judge,  each  party  has  an  equal  right  to  judge  for  itself,  as 
well  of  infractions  as  of  the  mode  and  measure  of  redress. 

7.  Resolved,  That  the  construction  applied  by  the  Gen 
eral  Government  (as  is  evidenced  by  sundry  of  their  pro 
ceedings)  to  those  parts  of  the  Constitution  of  the  United 
States  which  delegate  to  Congress  a  power  "  to  lay  and  col 
lect  taxes,  duties,  imports,  and  excises,  to  pay  the  debts  and 
provide  for  the  common  defence  and  general  welfare  of  the 
United  States,"  and  "  to  make  all  laws  which  shall  be  neces 
sary  and  proper  for  carrying  into  execution  the  powers 
vested  by  the  Constitution  in  the  Government  of  the  United 


APPENDIX  B.  407 

States,  or  in  any  department  or  officer  thereof,"  goes  to  the 
destruction  of  all  limits  prescribed  to  their  power  by  the 
Constitution  :  that  words  meant  by  the  instrument  to  be 
subsidiary  only  to  the  execution  of  limited  powers  ought 
not  to  be  so  construed  as  themselves  to  give  unlimited  pow 
ers,  nor  a  part  to  be  so  taken  as  to  destroy  the  whole  residue 
of  that  instrument:  that  the  proceedings  of  the  General 
Government  under  color  of  these  articles  will  be  a  fit  and 
necessary  subject  of  revisal  and  correction,  at  a  time  of 
greater  tranquillity,  while  those  specified  in  the  preceding 
resolutions  call  for  immediate  redress. 

8.  Resolved,  That  a  Committee  of  conference  and  corre 
spondence  be  appointed,  who  shall  have  in  charge  to  com 
municate  the  preceding  resolutions  to  the  Legislatures  of 
the  several  states  ;  to  assure  them  that  this  commonwealth 
continues  in  the  same  esteem  of  their  friendship  and  union 
which  it  has  manifested  from  that  moment  at  which  a  com 
mon  danger  first  suggested  a  common  union  :  that  it  con 
siders  union  for  specified  national  purposes,  and  particularly 
to  those  specified  in  their  late  federal  compact,  to  be 
friendly  to  the  peace,  happiness,  and  prosperity  of  all  the 
states  :  that  faithful  to  that  compact,  according  to  the  plain 
intent  and  meaning  in  which  it  was  understood  and  acceded 
to  by  the  several  parties,  it  is  sincerely  anxious  for  its  pres 
ervation :  that  it  does  also  believe,  that  to  take  from  the 
states  all  the  powers  of  self-government  and  transfer  them 
to  a  general  and  consolidated  government,  without  regard 
to  the  special  delegations  and  reservations  solemnly  agreed 
to  in  that  compact,  is  not  for  the  peace,  happiness,  or  pros 
perity  of  these  states ;  and  that  therefore  this  common 
wealth  is  determined,  as  it  doubts  not  its  co-states  are,  to 
submit  to  undelegated,  and  consequently  unlimited  powers 
in  no  man,  or  body  of  men  on  earth  :  that  in  cases  of  an 
abuse  of  the  delegated  powers,  the  members  of  the  General 
Government,  being  chosen  by  the  people,  a  change  by  the 
people  would  be  the  constitutional  remedy  ;  but  where  pow 
ers  are  assumed  which  have  not  been  delegated,  a  nuUifica- 


408  APPENDIX  B. 

tion  of  the  act  is  the  rightful  remedy  :  that  every  State  has  a 
natural  right  in  cases  not  within  the  compact  (casus  non  f  oe- 
deris),  to  nullify  of  their  own  authority  all  assumptions  of 
power  by  others  within  their  limits  :  that  without  this  right, 
they  would  be  under  the  dominion,  absolute  and  unlimited, 
of  whosoever  might  exercise  this  right  of  judgment  for 
them :  that  nevertheless,  this  commonwealth,  from  motives 
of  regard  and  respect  for  its  co-states,  has  wished  to  com 
municate  with  them  on  the  subject :  that  with  them  alone 
it  is  proper  to  communicate,  they  alone  being  parties  to  the 
compact,  and  solely  authorized  to  judge  in  the  last  resort  of 
the  powers  exercised  under  it,  Congress  being  not  a  party, 
but  merely  the  creature  of  the  compact,  and  subject  as  to 
its  assumptions  of  power  to  the  final  judgment  of  those  by 
whom,  and  for  whose  use,  itself  and  its  powers  were  all 
created  and  modified :  .  .  .  That  this  Commonwealth  does 
therefore  call  on  its  co-states  for  an  expression  of  their  sen 
timents  on  the  acts  concerning  aliens,  and  for  the  punish 
ment  of  certain  crimes  hereinbefore  specified,  plainly  declar 
ing  whether  these  acts  are  or  are  not  authorized  by  the 
federal  compact.  And  it  doubts  not  that  their  sense  will  be 
so  announced  as  to  prove  their  attachment  unaltered  to 
limited  government,  whether  general  or  particular.  And 
that  the  rights  and  liberties  of  their  co-states  will  be  ex 
posed  to  no  dangers  by  remaining  embarked  in  a  common 
bottom  with  their  own.  That  they  will  concur  with  this 
commonwealth  in  considering  the  said  acts  as  so  palpably 
against  the  Constitution  as  to  amount  to  an  undisguised  dec 
laration  that  that  compact  is  not  meant  to  be  the  measure 
of  the  powers  of  the  General  Government,  but  that  it  will 
proceed  in  the  exercise  over  these  states  of  all  powers 
whatsoever  :  that  they  will  view  this  as  seizing  the  rights  of 
the  states,  and  consolidating  them  in  the  hands  of  the  Gen 
eral  Government,  with  a  power  assumed  to  bind  the  states 
(not  merely  as  the  cases  made  federal  (casus  foederis), 
but  in  all  cases  whatsoever,  by  laws  made,  not  with  their 
consent,  but  by  others  against  their  consent)  :  that  this  would 


APPENDIX  B.  409 

be  to  surrender  the  form  of  government  we  have  chosen, 
and  live  under  one  deriving  its  powers  from  its  own  will, 
and  not  from  our  authority  :  and  that  the  co-states,  recur 
ring  to  their  natural  right  in  cases  not  made  federal,  will 
concur  in  declaring  these  acts  void,  and  of  no  force,  and 
will  each  take  measures  of  its  own  for  providing  that  nei 
ther  these  acts,  nor  any  others  of  the  General  Government 
not  plainly  and  intentionally  authorized  by  the  Constitution, 
shall  be  exercised  within  their  respective  territories. 

9.  Resolved,  That  the  said  committee  be  authorized  to 
communicate  by  writing  or  personal  conferences,  at  any 
time  or  places  whatever",  with  any  person  or  persons  who 
may  be  appointed  by  any  one  or  more  co-states  to  corre 
spond  or  confer  with  them,  and  that  they  lay  their  proceed 
ings  before  the  next  session  of  Assembly. 

VIRGINIA  RESOLUTIONS. 

In  the  Virginia  House  of  Delegates,  Friday,  December 
21,  1798. 

Resolved,  That  the  General  Assembly  of  Virginia  doth 
unequivocally  express  a  firm  resolution  to  maintain  and  de 
fend  the  Constitution  of  the  United  States,  and  the  consti 
tution  of  this  state,  against  every  aggression  either  foreign 
or  domestic ;  and  that  they  will  support  the  government  of 
the  United  States  in  all  measures  warranted  by  the  former. 

That  this  Assembly  most  solemnly  declares  a  warm  at 
tachment  to  the  Union  of  the  states,  to  maintain  which  it 
pledges  its  powers  ;  and,  that  for  this  end,  it  is  their  duty  to 
watch  over  and  oppose  every  infraction  of  those  principles 
which  constitute  the  only  basis  of  that  Union,  because  a 
faithful  observance  of  them  can  alone  secure  its  existence 
and  the  public  happiness. 

That  this  Assembly  doth  explicitly  and  peremptorily  de 
clare,  that  it  views  the  powers  of  the  Federal  Government, 
as  resulting  from  the  compact  to  which  the  states  are  par 
ties,  as  limited  by  the  plain  sense  and  intention  of  the  instru- 


410  APPENDIX  B. 

ment  constituting  that  compact,  as  no  further  valid  than 
they  are  authorized  by  the  grants  enumerated  in  that  com 
pact  ;  and  that,  in  case  of  a  deliberate,  palpable,  and  dan 
gerous  exercise  of  other  powers,  not  granted  by  the  said 
compact,  the  states,  who  are  parties  thereto,  have  the  right, 
and  are  in  duty  bound,  to  interpose,  for  arresting  the  prog 
ress  of  the  evil,  and  for  maintaining,  within  their  respective 
limits,  the  authorities,  rights,  and  liberties  appertaining  to 
them. 

That  the  General  Assembly  doth  also  express  its  deep 
regret  that  a  spirit  has,  in  sundry  instances,  been  mani 
fested  by  the  Federal  Government,  to  enlarge  its  powers 
by  forced  constructions  of  the  constitutional  charter  which 
defines  them  ;  and  that  indications  have  appeared  of  a  de 
sign  to  expound  certain  general  phrases  (which,  having  been 
copied  from  the  very  limited  grant  of  powers  in  the  former 
Articles  of  Confederation,  were  the  less  liable  to  be  miscon 
strued)  so  as  to  destroy  the  meaning  and  effect  of  the  particu 
lar  enumeration  which  necessarily  explains  and  limits  the 
general  phrases,  and  so  as  to  consolidate  the  states,  by  de 
grees,  into  one  Sovereignty,  the  obvious  tendency  and  inev 
itable  result  of  which  would  be,  to  transform  the  present  re 
publican  system  of  the  United  States  into  an  absolute,  or,  at 
best,  a  mixed  monarchy.  .  .  . 

That  the  good  people  of  this  commonwealth,  having  ever 
felt,  and  continuing  to  feel,  the  most  sincere  affection  for 
their  brethren  of  the  other  states ;  the  truest  anxiety  for 
establishing  and  perpetuating  the  union  of  all ;  and  the  most 
scrupulous  fidelity  to  that  Constitution,  which  is  the  pledge 
of  mutual  friendship,  and  the  instrument  of  mutual  happi 
ness  ;  the  General  Assembly  doth  solemnly  appeal  to  the  like 
dispositions  in  the  other  states,  in  confidence  that  they  will 
concur  with  this  commonwealth  in  declaring,  as  it  does 
hereby  declare,  that  the  acts  aforesaid  are  unconstitutional; 
and  that  the  necessary  and  proper  measures  will  be  taken 
by  each  for  cooperating  with  this  state,  in  maintaining  un 
impaired  the  authorities,  rights,  and  liberties  reserved  to 
the  states  respectively,  or  to  the  people. 


APPENDIX  C.  411 

That  the  governor  be  desired  to  transmit  a  copy  of  the 
foregoing  resolutions  to  the  executive  authority  of  each  of 
the  other  states,  with  a  request,  that  the  same  may  be  com 
municated  to  the  legislature  thereof  ;  and  that  a  copy  be 
furnished  to  each  of  the  senators  and  representatives  repre 
senting  this  state  in  the  Congress  of  the  United  States. 


APPENDIX  C. 

PROCLAMATION. 

Whereas,  At  the  late  session,  Congress  passed  a  bill  to 
guarantee  to  certain  states  whose  governments  have  been 
usurped  or  overthrown  a  republican  form  of  government,  a 
copy  of  which  is  hereunto  annexed  ; 

And  whereas,  The  said  bill  was  presented  to  the  Presi 
dent  of  the  United  States  for  his  approval  less  than  one 
hour  before  the  sine  die  adjournment  of  said  session,  and 
was  not  signed  by  him  ; 

And  whereas,  The  said  bill  contains,  among  other  things, 
a  plan  for  restoring  the  states  in  rebellion  to  their  proper 
practical  relation  in  the  Union,  which  plan  expressed  the 
sense  of  Congress  upon  that  subject,  and  which  plan  it  is 
now  thought  fit  to  lay  before  the  people  for  their  consid 
eration  ; 

Now,  therefore,  I,  Abraham  Lincoln,  President  of  the 
United  States,  do  proclaim,  declare,  and  make  known  that 
while  T  am  —  as  I  was  in  December  last,  when  by  procla 
mation  I  propounded  a  plan  for  restoration  —  unprepared  by 
a  formal  approval  of  this  bill  to  be  inflexibly  committed  to 
any  single  plan  of  restoration  ;  and  while  I  am  also  unpre 
pared  to  declare  that  the  free-state  constitutions  and  gov 
ernments  already  adopted  and  installed  in  Arkansas  and 
Louisiana  shall  be  set  aside  and  held  for  naught,  thereby 
repelling  and  discouraging  the  loyal  citizens  who  have  set 
up  the  same  as  to  further  effort,  or  to  declare  a  constitu 
tional  competency  in  Congress  to  abolish  slavery  in  the 


412  APPENDIX   C. 

states,  but  am  at  the  same  time  sincerely  hoping  and  ex 
pecting  that  a  constitutional  amendment  abolishing  slavery 
throughout  the  nation  may  be  adopted  ; 

Nevertheless,  I  am  fully  satisfied  with  the  system  for  res 
toration  contained  in  the  bill,  as  one  very  proper  for  the 
loyal  people  of  any  state  choosing  to  adopt  it ;  and  that  I 
am,  and  at  all  times  shall  be,  prepared  to  give  the  Execu 
tive  aid  and  assistance  to  any  such  people,  so  soon  as  mili 
tary  resistance  to  the  United  States  shall  have  been  sup 
pressed  in  any  such  state,  and  the  people  thereof  shall  have 
sufficiently  returned  to  their  obedience  to  the  Constitution 
and  the  laws  of  the  United  States  —  in  which  cases  mili 
tary  governors  will  be  appointed,  with  directions  to  proceed 
according  to  the  bill. 

In  testimony  whereof,  I  have  hereunto  set  my  hand,  and 
caused  the  seal  of  the  United  States  to  be  affixed. 

Done  at  the  City  of  Washington,  this  8th  day  of  July,  in 
the  year  of  our  Lord  one  thousand  eight  hundred  and  sixty- 
four,  and  of  the  independence  of  the  United  States  the 
eighty-ninth. 

(L.  s.)  ABRAHAM  LINCOLN. 

PROTEST  OF  SENATOR  WADE   AND   H.  WINTER  DAVIS,  M.  C. 

To  the  supporters  of  the  Government : 

We  have  read  without  surprise,  but  not  without  indigna 
tion,  the  proclamation  of  the  President  of  the  8th  of  July, 
1864. 

The  supporters  of  the  Administration  are  reponsible  to 
the  country  for  its  conduct ;  and  it  is  their  right  and  duty  to 
check  the  encroachments  of  the  Executive  on  the  authority 
of  Congress,  and  to  require  it  to  confine  itself  to  its  proper 
sphere. 

It  is  impossible  to  pass  in  silence  this  proclamation  with 
out  neglecting  that  duty  ;  and,  having  taken  as  much  re 
sponsibility  as  any  others  in  supporting  the  Administration, 
we  are  not  disposed  to  fail  in  the  other  duty  of  asserting  the 
rights  of  Congress. 


APPENDIX  C.  413 

The  President  did  not  sign  the  bill  "  to  guarantee  to  cer 
tain  states  whose  governments  have  been  usurped,  a  republi 
can  form  of  government  "  — passed  by  the  supporters  of  his 
Administration  in  both  Houses  of  Congress  after  mature 
deliberation. 

The  bill  did  not  therefore  become  a  law ;  and  it  is,  there 
fore,  nothing. 

The  proclamation  is  neither  an  approval  nor  a  veto  of  the 
bill ;  it  is,  therefore,  a  document  unknown  to  the  Laws  and 
Constitution  of  the  United  States. 

So  far  as  it  contains  an  apology  for  not  signing  the  bill, 
it  is  a  political  manifesto  against  the  friends  of  the  Govern 
ment. 

So  far  as  it  proposes  to  execute  the  bill  which  is  not  a  law, 
it  is  a  grave  Executive  usurpation. 

It  is  fitting  that  the  facts  necessary  to  enable  the  friends 
of  the  Administration  to  appreciate  the  apology  and  the 
usurpation  be  spread  before  them. 

The  proclamation  says  :  — 

"  And  whereas  the  said  bill  was  presented  to  the  Presi 
dent  of  the  United  States  for  his  approval  less  than  one  hour 
before  the  sine  die  adjournment  of  said  session,  and  was 
not  signed  by  him  "  — 

If  that  be  accurate,  still  this  bill  was  presented  with  other 
bills  which  were  signed. 

Within  that  hour  the  time  for  the  sine  die  adjournment 
was  three  times  postponed  by  the  votes  of  both  Houses  ;  and 
the  least  intimation  of  a  desire  for  more  time  by  the  Presi 
dent  to  consider  this  bill  would  have  secured  a  further  post 
ponement. 

Yet  the  committee  sent  to  ascertain  if  the  President  had 
any  further  communication  for  the  House  of  Representa 
tives  reported  that  he  had  none  ;  and  the  friends  of  the  bill, 
who  had  anxiously  waited  on  him  to  ascertain  its  fate,  had 
already  been  informed  that  the  President  had  resolved  not 
to  sign  it. 

The  time  of  presentation,  therefore,  had  nothing  to  do 
with  his  failure  to  approve  it. 


414  APPENDIX  C. 

The  bill  had  been  discussed  and  considered  for  more  than 
a  month  in  the  House  of  Representatives,  which  it  passed 
on  the  4th  of  May.  It  was  reported  to  the  Senate  on  the 
27th  of  May,  without  material  amendment,  and  passed  the 
Senate  absolutely  as  it  came  from  the  House  on  the  2d  of 
July. 

Ignorance  of  its  contents  is  out  of  the  question. 

Indeed,  at  his  request,  a  draft  of  a  bill  substantially  the 
same  in  material  points,  and  identical  in  the  points  objected 
to  by  the  proclamation,  had  been  laid  before  him  for  his 
consideration  in  the  winter  of  1862-1863. 

There  is,  therefore,  no  reason  to  suppose  the  provisions  of 
the  bill  took  the  President  by  surprise. 

On  the  contrary,  we  have  reason  to  believe  them  to  have 
been  so  well  known  that  this  method  of  preventing  the  bill 
from  becoming  a  law  without  the  constitutional  responsibil 
ity  of  a  veto  had  been  resolved  on  long  before  the  bill 
passed  the  Senate. 

We  are  informed  by  a  gentleman  entitled  to  entire  con 
fidence,  that  before  the  22d  of  June,  in  New  Orleans,  it  was 
stated  by  a  member  of  General  Banks'  staff,  in  the  presence 
of  other  gentlemen  in  official  position,  that  Senator  Doo- 
little  had  written  a  letter  to  the  department  that  the  House 
Reconstruction  Bill  would  be  staved  off  in  the  Senate  to  a 
period  too  late  in  the  session  to  require  the  President  to  veto 
it  in  order  to  defeat  it,  and  that  Mr.  Lincoln  would  retain 
the  bill,  if  necessary,  and  thereby  defeat  it. 

The  experience  of  Senator  Wade,  in  his  various  efforts 
to  get  the  bill  considered  in  the  Senate,  was  quite  in  ac 
cordance  with  that  plan ;  and  the  fate  of  the  bill  was  ac 
curately  predicted  by  letters  received  from  New  Orleans 
before  it  had  passed  the  Senate. 

Had  the  proclamation  stopped  there,  it  would  have  been 
only  one  other  defeat  of  the  will  of  the  people  by  the  Ex 
ecutive  perversion  of  the  Constitution. 

But  it  goes  further.     The  President  says  :  — 

"  And  whereas  the  said  bill  contains,  among  other  things, 


APPENDIX   C.  415 

a  plan  for  restoring  the  States  in  rebellion  to  their  proper 
practical  relation  in  the  Union,  which  plan  expresses  the 
sense  of  Congress  upon  that  subject,  and  which  plan  it  is 
now  thought  fit  to  lay  before  the  people  for  their  considera 
tion  "  — 

By  what  authority  of  the  Constitution  ?  In  what  forms  ? 
The  result  to  be  declared  by  whom?  With  what  effect 
when  ascertained  ? 

Is  it  to  be  a  law  by  the  approval  of  the  people,  without 
the  approval  of  Congress,  at  the  will  of  the  President  ? 

Will  the  President,  on  his  opinion  of  the  popular  approval, 
execute  it  as  a  law  ? 

Or  is  this  merely  a  device  to  avoid  the  serious  responsi 
bility  of  defeating  a  law  on  which  so  many  loyal  hearts  re 
posed  for  security  ? 

But  the  reasons  now  assigned  for  not  approving  the  bill 
are  full  of  ominous  significance. 

The  President  proceeds  :  — 

"  Now,  therefore,  I,  Abraham  Lincoln,  President  of  the 
United  States,  do  proclaim,  declare,  and  make  known  that, 
while  I  am  (as  I  was  in  December  last,  when  by  proclama 
tion  I  propounded  a  plan  for  restoration)  unprepared  by  a 
formal  approval  of  this  bill  to  be  inflexibly  committed  to 
any  single  plan  of  restoration." 

That  is  to  say,  the  President  is  resolved  that  people  shall 
not  by  law  take  any  securities  from  the  rebel  states  against 
a  renewal  of  the  rebellion,  before  restoring  their  power  to 
govern  us. 

His  wisdom  and  prudence  are  to  be  our  sufficient  guaran 
tees  !  He  further  says  :  — 

"And  while  I  am  also  unprepared  to  declare  that  the 
free-state  constitutions  and  governments  already  adopted 
and  installed  in  Arkansas  and  Louisiana  shall  be  set  aside 
and  held  for  naught,  thereby  repelling  and  discouraging 
the  loyal  citizens  who  have  set  up  the  same  as  to  further 
effort"  — 

That  is  to  say,  the  President  persists  in  recognizing  those 


416  APPENDIX   C. 

shadows  of  governments  in  Arkansas  and  Louisiana  which 
Congress  formally  declared  should  not  be  recognized  — 
whose  representatives  and  senators  were  repelled  by  formal 
votes  of  both  Houses  of  Congress  —  which  it  was  declared 
formally  should  have  no  electoral  vote  for  President  and 
Vice-President. 

They  are  mere  creatures  of  his  will.  They  are  mere 
oligarchies,  imposed  on  the  people  by  military  orders  under 
the  form  of  election,  at  which  generals,  provost  marshals, 
soldiers,  and  camp-followers  were  the  chief  actors,  assisted 
by  a  handful  of  resident  citizens,  and  urged  on  to  premature 
action  by  private  letters  from  the  President. 

In  neither  Louisiana  nor  Arkansas,  before  Banks'  defeat, 
did  the  United  States  control  half  the  territory  or  half  the 
population.  In  Louisiana,  General  Banks'  proclamation 
candidly  declared :  "  The  fundamental  law  of  the  state  is 
martial  law." 

On  that  foundation  of  freedom  he  erected  what  the  Presi 
dent  calls  "  the  free  constitution  and  government  of  Lou 
isiana." 

But  of  this  state,  whose  fundamental  law  was  martial 
law,  only  sixteen  parishes  out  of  forty-eight  parishes  were 
held  by  the  United  States  ;  and  in  five  of  the  sixteen  we 
held  only  our  camps. 

The  eleven  parishes  we  substantially  held  had  233,185 
inhabitants ;  the  residue  of  the  State  not  held  by  us, 
575,617. 

At  the  farce  called  an  election,  the  officers  of  General 
Banks  returned  that  11,346  ballots  were  cast ;  but  whether 
any  or  by  whom,  the  people  of  the  United  States  have  no 
legal  assurance  ;  but  it  is  probable  that  4000  were  cast  by 
soldiers  or  employe's  of  the  United  States,  military  or  mu 
nicipal,  but  none  according  to  any  law,  state  or  national, 
and  7000  ballots  represent  the  state  of  Louisiana. 

Such  is  the  free  constitution  and  government  of  Louisiana ; 
and  like  it  is  that  of  Arkansas.  Nothing  but  the  failure 
of  a  military  expedition  deprived  us  of  a  like  one  in  the 


APPENDIX   C.  417 

swamps  of  Florida;  and  before  the  Presidential  election, 
like  ones  may  be  organized  in  every  rebel  state  where  the 
United  States  have  a  camp. 

The  President,  by  preventing  this  bill  from  becoming  a 
law,  holds  the  electoral  votes  of  the  rebel  states  at  the  dic 
tation  of  his  personal  ambition. 

If  those  votes  turn  the  balance  in  his  favor,  is  it  to  be 
supposed  that  his  competitor,  defeated  by  such  means,  will 
acquiesce  ? 

If  the  rebel  majority  assert  their  supremacy  in  those 
states,  and  send  votes  which  elect  an  enemy  of  the  Govern 
ment,  will  we  not  repel  his  claims  ? 

And  is  not  that  civil  war  for  the  Presidency  inaugurated 
by  the  votes  of  rebel  states  ? 

Seriously  impressed  with  these  dangers,  Congress,  "  the 
proper  constitutional  authority,"  formally  declared  that 
there  are  no  state  governments  in  the  rebel  states,  and 
provided  for  their  erection  at  a  proper  time ;  and  both  the 
Senate  and  the  House  of  Representatives  rejected  the  sen 
ators  and  representatives  chosen  under  the  authority  of 
what  the  President  calls  the  free  constitution  and  govern 
ment  of  Arkansas. 

The  President's  proclamation  "  holds  for  naught "  this 
judgment,  and  discards  the  authority  of  the  Supreme  Court, 
and  strides  headlong  toward  the  anarchy  his  proclamation 
of  the  8th  of  December  inaugurated. 

If  electors  for  President  be  allowed  to  be  chosen  in 
either  of  those  states,  a  sinister  light  will  be  cast  on  the 
motives  which  induced  the  President  to  "  hold  for  naught " 
the  will  of  Congress  rather  than  his  government  in  Louisi 
ana  and  Arkansas. 

That  judgment  of  Congress  which  the  President  defies 
was  the  exercise  of  an  authority  exclusively  vested  in  Con 
gress  by  the  Constitution,  to  determine  what  is  the  estab 
lished  government  in  a  state,  and  in  its  own  nature  and  by 
the  highest  judicial  authority  binding  on  all  other  depart 
ments  of  the  government. 


418  APPENDIX   C. 

The  Supreme  Court  has  formally  declared  that,  under 
the  4th  section  of  the  IVth  article  of  the  Constitution, 
requiring  the  United  States  to  guarantee  to  every  state  a 
republican  form  of  government,  "  it  rests  with  Congress  to 
decide  what  government  is  the  established  one  in  a  state ;  " 
and  "  when  senators  and  representatives  of  a  state  are  ad 
mitted  into  the  councils  of  the  Union,  the  authority  of  the 
Government  under  which  they  are  appointed,  as  well  as  its 
republican  character,  is  recognized  by  the  proper  constitu 
tional  authority,  and  its  decision  is  binding  on  every  other 
department  of  the  Government,  and  could  not  be  questioned 
in  a  judicial  tribunal.  It  is  true  that  the  contest  in  this 
case  did  not  last  long  enough  to  bring  the  matter  to  this 
issue ;  and  as  no  senators  or  representatives  were  elected 
under  the  authority  of  the  Government  of  which  Mr.  Dorr 
was  the  head,  Congress  was  not  called  upon  to  decide  the 
controversy.  Yet  the  right  to  decide  is  placed  there." 

Even  the  President's  proclamation  of  the  8th  of  December 
formally  declares  that  "  whether  members  sent  to  Congress 
from  any  state  shall  be  admitted  to  seats  constitutionally 
rests  exclusively  with  the  respective  Houses,  and  not  to  any 
extent  with  the  Executive." 

And  that  is  not  the  less  true  because  wholly  inconsistent 
with  the  President's  assumption  in  that  proclamation  of  a 
right  to  institute  and  recognize  state  governments  in  the 
rebel  states,  nor  because  the  President  is  unable  to  perceive 
that  his  recognition  is  a  nullity  if  it  be  not  conclusive  on 
Congress. 

Under  the  Constitution,  the  right  to  senators  and  repre 
sentatives  is  inseparable  from  a  state  government. 

If  there  be  a  state  government,  the  right  is  absolute. 

If  there  be  no  state  government,  there  can  be  no  senators 
or  representatives  chosen. 

The  two  Houses  of  Congress  are  expressly  declared  to  be 
the  sole  judges  of  their  own  members. 

When,  therefore,  senators  and  representatives  are  ad 
mitted,  the  state  government  under  whose  authority  they 


APPENDIX   C.  419 

were  chosen  is  conclusively  established ;  when  they  are  re 
jected,  its  existence  is  as  conclusively  rejected  and  denied  ; 
and  to  this  judgment  the  President  is  bound  to  submit. 

The  President  proceeds  to  express  his  unwillingness  "  to 
declare  a  constitutional  competency  in  Congress  to  abolish 
slavery  in  States  "  as  another  reason  for  not  signing  the  bill. 

But  the  bill  nowhere  proposes  to  abolish  slavery  in  the 
States. 

The  bill  did  provide  that  all  slaves  in  the  rebel  states 
should  be  manumitted. 

But  as  the  President  had  already  signed  three  bills 
manumitting  several  classes  of  slaves  in  the  states,  it  is  not 
conceived  possible  that  he  entertained  any  scruples  touching 
that  provision  of  the  bill  respecting  which  he  is  silent. 

He  had  already  himself  assumed  a  right  by  proclamation 
to  free  much  the  larger  number  of  slaves  in  the  rebel  states, 
under  the  authority  given  him  by  Congress  to  use  military 
power  to  suppress  the  rebellion  ;  and  it  is  quite  inconceivable 
that  the  President  should  think  Congress  could  vest  in  him 
a  discretion  it  could  not  exercise  itself. 

It  is  the  more  unintelligible  from  the  fact  that,  except 
in  respect  to  a  small  part  of  Virginia  and  Louisiana,  the  bill 
covered  only  what  the  proclamation  covered  —  added  a 
congressional  title  and  judicial  remedies  by  law  to  the  dis 
puted  title  under  the  proclamation,  and  perfected  the  work 
the  President  professed  to  be  so  anxious  to  accomplish. 

Slavery  as  an  institution  can  be  abolished  only  by  a 
change  of  the  Constitution  of  the  United  States,  or  of  the 
law  of  the  States  ;  and  this  is  the  principle  of  the  bill. 

It  required  the  new  constitution  of  the  State  to  provide 
for  that  prohibition  ;  and  the  President,  in  the  face  of  his 
own  proclamation,  does  not  venture  to  object  to  insisting  on 
that  condition.  Nor  will  the  country  tolerate  its  abandon 
ment  —  yet  he  defeated  the  only  provision  imposing  it. 

But  when  he  describes  himself,  in  spite  of  this  great 
blow  at  emancipation,  as  "  sincerely  hoping  and  expecting 
that  a  constitutional  amendment  abolishing  slavery  through- 


420  APPENDIX  C. 

out  the*  nation  may  be  adopted,"  we  curiously  inquire  on 
what  his  expectation  rests,  after  the  vote  of  the  House  of 
Representatives  at  the  recent  session,  and  in  the  face  of  the 
political  complexion  of  more  than  enough  of  the  states  to 
prevent  the  possibility  of  its  adoption  within  any  reasonable 
time  ;  and  why  he  did  not  indulge  his  sincere  hopes  with  so 
large  an  instalment  of  the  blessing  as  his  approval  of  the  bill 
would  have  secured  ? 

After  this  assignment  of  his  reasons  for  preventing  the 
bill  from  becoming  a  law,  the  President  proceeds  to  declare 
his  purpose  to  execute  it  as  a  law  by  his  plenary  dictatorial 
power. 

He  says:  "Nevertheless,  I  am  fully  satisfied  with  the 
system  for  restoration  contained  in  the  bill,  as  one  very 
proper  for  the  loyal  people  of  any  state  choosing  to  adopt 
it ;  and  that  I  am,  and  at  all  times  shall  be,  prepared  to 
give  the  Executive  aid  and  assistance  to  any  such  people, 
as  soon  as  military  resistance  to  the  United  States  shall 
have  been  suppressed  in  any  such  state,  and  the  people 
thereof  shall  have  sufficiently  returned  to  their  obedience  to 
the  Constitution  and  laws  of  the  United  States  —  in  which 
cases  military  governors  will  be  appointed,  with  directions 
to  proceed  according  to  the  bill." 

A  more  studied  outrage  on  the  legislative  authority  of  the 
people  has  never  been  perpetrated. 

Congress  passed  a  bill ;  the  President  refused  to  approve 
it,  and  then  by  proclamation  puts  as  much  of  it  in  force  as 
he  sees  fit,  and  proposes  to  execute  those  parts  by  officers 
unknown  to  the  laws  of  the  United  States,  and  not  subject 
to  the  confirmation  of  the  Senate. 

The  bill  directed  the  appointment  of  provisional  gov 
ernors  by  and  with  the  advice  and  consent  of  the  Senate. 

The  President,  after  defeating  the  law,  proposes  to  ap 
point,  without  law  and  without  the  advice  and  consent  of 
the  Senate,  military  governors  for  the  rebel  states  ! 

He  has  already  exercised  this  dictatorial  usurpation  in 
Louisiana,  and  defeated  the  bill  to  prevent  its  limitation. 


APPENDIX   C.  .  421 

Henceforth  we  must  regard  the  following  precedent  as  the 
Presidential  law  of  the  rebel  states  :  — 

EXECUTIVE  MANSION, 
WASHINGTON,  March  15, 1864. 

His  Excellency  Michael  Hahn,  Governor  of  Louisiana  : 

Until  further  orders  you  are  hereby  invested  with  the 
powers  exercised  hitherto  by  the  military  governor  of  Loui 
siana.  Yours, 

ABRAHAM  LINCOLN. 

This  Michael  Hahn  is  no  officer  of  the  United  States ; 
the  President,  without  law,  without  the  advice  and  consent 
of  the  Senate,  by  a  private  note  not  even  countersigned  by 
the  Secretary  of  State,  makes  him  dictator  of  Louisiana  ! 

The  bill  provided  for  the  civil  administration  of  the  laws 
of  the  state,  —  but  it  should  be  in  a  fit  temper  to  govern 
itself,  —  repealing  all  laws  recognizing  slavery,  and  making 
all  men  equal  before  the  law. 

These  beneficent  provisions  the  President  has  annulled. 
People  will  die,  and  marry,  and  transfer  property,  and  buy 
and  sell ;  and  to  these  acts  of  civil  life  courts  and  officers 
of  the  law  are  necessary.  Congress  legislated  for  these 
necessary  things,  and  the  President  deprives  them  of  the 
protection  of  the  law ! 

The  President's  purpose  to  instruct  his  military  governors 
"  to  proceed  according  to  the  bill  "  —  a  makeshift  to  calm 
the  disappointment  its  defeat  has  occasioned  —  is  not  merely 
a  grave  usurpation,  but  a  transparent  delusion. 

He  cannot  "  proceed  according  to  the  bill "  after  prevent 
ing  it  from  becoming  a  law. 

Whatever  is  done  will  be  at  his  will  and  pleasure,  by  per 
sons  responsible  to  no  law,  and  more  interested  to  secure 
the  interests  and  execute  the  will  of  the  President  than  of 
the  people ;  and  the  will  of  Congress  is  to  be  "  held  for 
naught,"  "  unless  the  loyal  people  of  the  rebel  states  choose 
to  adopt  it." 


422  APPENDIX  C. 

If  they  should  graciously  prefer  the  stringent  bill  to  the 
easy  proclamation,  still  the  registration  will  be  made  under 
no  legal  sanction  ;  it  will  give  no  assurance  that  a  majority 
of  the  people  of  the  states  have  taken  the  oath  ;  if  admin 
istered,  it  will  be  without  legal  authority  and  void  ;  no  indict 
ment  will  lie  for  false  swearing  at  the  election,  or  for 
admitting  bad  or  rejecting  good  votes ;  it  will  be  the  farce 
of  Louisiana  and  Arkansas  acted  over  again,  under  the 
forms  of  this  bill,  but  not  by  authority  of  law. 

But  when  we  come  to  the  guarantees  of  future  peace 
which  Congress  meant  to  enact,  the  forms  as  well  as  the 
substance  of  the  bill  must  yield  to  the  President's  will  that 
none  should  be  imposed. 

It  was  the  solemn  resolve  of  Congress  to  protect  the  loyal 
men  of  the  nation  against  three  great  dangers  :  (1)  the 
return  to  power  of  the  guilty  leaders  of  the  rebellion ;  (2) 
the  continuance  of  slavery ;  and  (3)  the  burden  of  the  rebel 
debt. 

Congress  required  assent  to  those  provisions  by  the  con 
vention  of  the  state  ;  and,  if  refused,  it  was  to  be  dissolved. 

The  President  "  holds  for  naught  "  that  resolve  of  Con 
gress,  because  he  is  unwilling  "  to  be  inflexibly  committed 
to  any  one  plan  of  restoration,"  and  the  people  of  the 
United  States  are  not  to  be  allowed  to  protect  themselves 
unless  their  enemies  agree  to  it. 

The  order  to  proceed  according  to  the  bill  is  therefore 
merely  at  the  will  of  the  rebel  states ;  and  they  have  the 
option  to  reject  it,  accept  the  proclamation  of  the  8th  of 
December,  and  demand  the  President's  recognition ! 

Mark  the  contrast!  The  bill  requires  a  majority,  the 
proclamation  is  satisfied  with  one  tenth ;  the  bill  requires 
one  oath,  the  proclamation  another  ;  the  bill  ascertains  voters 
by  registering,  the  proclamation  by  guess ;  the  bill  exacts 
adherence  to  existing  territorial  limits,  the  proclamation 
admits  of  others ;  the  bill  governs  the  rebel  states  by  law, 
equalizing  all  before  it,  the  proclamation  commits  them  to 
the  lawless  discretion  of  military  governors  and  provost 


APPENDIX  C.  423 

marshals ;  the  bill  forbids  electors  for  President,  the  procla 
mation  and  defeat  of  the  bill  threaten  us  with  civil  war  for 
the  admission  or  exclusion  of  such  votes  ;  the  bill  exacted 
exclusion  of  dangerous  enemies  from  power  and  the  relief 
of  the  nation  from  the  rebel  debt,  and  the  prohibition  of 
slavery  forever,  so  that  the  suppression  of  the  rebellion  will 
double  our  resources  to  bear  or  pay  the  national  debt,  free 
the  masses  from  the  old  domination  of  the  rebel  leaders, 
and  eradicate  the  cause  of  the  war ;  the  proclamation  se 
cures  neither  of  these  guarantees. 

It  is  silent  respecting  the  rebel  debt  and  the  political 
exclusion  of  rebel  leaders ;  leaving  slavery  exactly  where  it 
was  by  law  at  the  outbreak  of  the  rebellion,  and  adds  no 
guarantee  even  of  the  freedom  of  the  slaves  he  undertook 
to  manumit. 

It  is  summed  up  in  an  illegal  oath,  without  sanction,  and 
therefore  void. 

The  oath  is  to  support  all  proclamations  of  the  President, 
during  the  rebellion,  having  reference  to  slaves. 

Any  government  is  to  be  accepted  at  the  hands  of  one 
tenth  of  the  people  not  contravening  that  oath. 

Now  that  oath  neither  secures  the  abolition  of  slavery, 
nor  adds  any  security  to  the  freedom  of  the  slaves  the  Presi 
dent  declared  free. 

It  does  not  secure  the  abolition  of  slavery  ;  for  the  procla 
mation  of  freedom  merely  professed  to  free  certain  slaves 
while  it  recognized  the  institution. 

Every  constitution  of  the  rebel  states  at  the  outbreak  of 
the  rebellion  may  be  adopted  without  the  change  of  a  letter : 
for  none  of  them  contravene  that  proclamation  ;  none  of 
them  establish  slavery. 

It  adds  no  security  to  the  freedom  of  the  slaves  ;  for  their 
title  is  the  proclamation  of  freedom. 

If  it  be  unconstitutional,  an  oath  to  support  it  is  void. 
Whether  constitutional  or  not,  the  oath  is  without  authority 
of  law,  and  therefore  void. 

If  it  be  valid  and  observed,  it  exacts  no  enactment  by 


424  APPENDIX   C. 

the  state,  either  in  law  or  constitution,  to  add  a  state  guar 
antee  to  the  proclamation  title ;  and  the  right  of  a  slave  to 
freedom  is  an  open  question  before  the  state  courts  on  the 
relative  authority  of  the  state  law  and  the  proclamation. 

If  the  oath  binds  the  one  tenth  who  take  it,  it  is  not  ex 
acted  of  the  other  nine  tenths  who  succeed  to  the  control  of 
the  state  government,  so  that  it  is  annulled  instantly  by  the 
act  of  recognition. 

What  the  state  courts  would  say  of  the  proclamation, 
who  can  doubt  ? 

But  the  master  would  not  go  into  court  —  he  would  seize 
his  slaves. 

What  the  Supreme  Court  would  say,  who  can  tell  ? 
When  and  how  is  the  question  to  get  there  ? 
No  habeas  corpus  lies  for  him  in  a  United  States  Court ; 
and  the  President  defeated  with  this  bill  the  extension  of 
that  writ  to  his  case. 

Such  are  the  fruits  of  this  rash  and  fatal  act  of  the  Presi 
dent,  —  a  blow  at  the  friends  of  his  Administration,  at  the 
rights  of  humanity,  and  at  the  principles  of  republican 
government. 

The  President  has  greatly  presumed  on  the  forbearance 
which  the  supporters  of  his  Administration  have  so  long 
practised,  in  view  of  the  arduous  conflict  in  which  we  are 
engaged,  and  the  reckless  ferocity  of  our  political  oppo 
nents. 

But  he  must  understand  that  our  support  is  of  a  cause, 
and  not  of  a  man ;  that  the  authority  of  Congress  is  para 
mount  and  must  be  respected ;  that  the  whole  body  of  the 
Union  men  of  Congress  will  not  submit  to  be  impeached  by 
him  of  rash  and  unconstitutional  legislation;  and  if  he 
wishes  our  support,  he  must  confine  himself  to  his  Executive 
duties,  —  to  obey  and  execute,  not  make  the  laws,  —  to  sup 
press  by  arms  armed  rebellion,  and  leave  political  reorgani 
zation  to  Congress. 

If  the  supporters  of  the  Government  fail  to  insist  on  this, 
they  become  responsible  for  the  usurpations  which  they  fail 


APPENDIX   C.  425 

to  rebuke,  and  are  justly  liable  to  the  indignation  of  the  peo 
ple  whose  rights  and  security,  committed  to  their  keeping, 
they  sacrifice. 

Let  them  consider  the  remedy  of  these  usurpations,  and, 
having  found  it,  fearlessly  execute  it. 

B.  F.  WADE, 
Chairman  Senate  Committee. 

H.  WINTER  DAVIS, 

Chairman  Committee  House  of  Representatives  on 
the  rebellious  states. 


INDEX. 


ABOLITIONISTS,  welcome  disunion,  231. 

Acts  of  Navigation  and  of  Trade,  49, 
50. 

Adams,  John,  45  n.,  50  n.,  63  n.,  77  n. 

Adams,  John  Quincy,  on  admission  of  Ar 
kansas,  218,  219;  concerning  Spain's 
offer,  221. 

Adams,  Samuel,  opposed  to  Washington 
administration,  151. 

Address  to  people  of  Great  Britain,  69. 

Administration,  American  sense  of,  29, 
30 ;  royal,  52  ;  colonial,  131-133. 

Alabama,  2,  217,  223. 

Albany  Conference,  46  n. 

Alien  and  Sedition  laws,  192,  194. 

Allegiance,  52,  53,  66. 

Amnesty  Proclamation,  272,  273,  281, 
303,  333,  345,  346,  353,  386  n. 

Anglican  element,  predominance  of,  40- 

Anglican  Revolution,  23. 

Anti-Federalists  (see  Democratic  Party), 
a  misnomer,  146  ;  reason  for  existence 
of,  146. 

Aristotle,  on  constitution  and  govern 
ment,  28,  31,  32  ;  his  notion  of  a  state, 
32  n. 

Arkansas,  218-220,  228,  302,  303,  306, 
307,  309,  316 ;  reconstruction  of,  324, 
325 ;  347. 

Arnold,  Benedict,  94  n. 

Articles  of  Association,  69. 

Articles  of  Confederation,  12,  36,  64,  77 
n. ;  expressive  of  segregation  and  of 
union,  80,  81  ;  testify  to  sentiment  of 
union,  82,  108  ;  first  article  of,  83,  84 ; 
league  of  friendship,  84,  101,  107; 
when  first  submitted,  86,  87;  expla 
nation  of  weakness  of,  88-91,  98,  101, 
105  ;  reasons  for,  91,  137  ;  a  grudging 
compact,  92  ;  they  constitutionalized 
Congress,  93 ;  limitations  upon  Con 
gress,  93  n.  ;  no  jurisdiction  over  in 
ternal  affairs  of  the  states,  94  ;  war 
half  over  before  adoption  of,  95,  137  ; 
Congress  was  inchoate  under,  100, 
139;  "the  great  and  radical  vice," 
101  ;  Hamilton's,  Madison's,  Edmund 
Randolph's  expositions  of  defects,  102, 
103  n.  ;  powers  not  delegated  were 
retained,  84,  110 ;  federal  principle 
predominant,  117, 118  ;  effect  of  slaves 
upon  quotas  of  contribution,  120 ;  not 
evidence  of  existence  of  parties,  137  ; 
ratification  of,  189. 


Ashley,  James  M.,  307,  308,  316. 
Assembly,  the  General  (see  Legislatures). 
Assimilation  of  races,  41,  42. 
Attachment  to  the  soil,  southern,  14 ; 

colonial,  58. 
Autonomy,  47,  48,  52-54. 

Baltimore,  42  n. 

Bank  of  the  United  States,  173. 

Banks,  Nathaniel  P.,  302,  303,  334,  352- 
354. 

Benton,  Thomas  H.,  204. 

Bigelow,  John,  45  n.,  46  n.,  60  n. 

Bill,  Exclusion,  24. 

Bill  of  Rights,  24,  67,  68. 

Black,  Jeremiah  S.,  opinion  respecting 
coercion,  230. 

Bluntschli,  62  n. 

Board  of  Lords  of  Trade  and  Planta 
tions,  49. 

Body-politic  (see  Corporation). 

Bonaparte,  Napoleon,  author  of  clause 
in  Louisiana  treaty,  218. 

Border  States,  246-249,  346;  Lincoln's 
appeal  to,  266,  268. 

Boston,  42. 

Boutwell,  George  S.,  287. 

Breckinridge,  John  C.,  251,  252. 

Brown,  B.  Gratz,  290. 

Brownlow,  W.  G.,  governor  of  Tennes 
see,  323. 

Brown  v.  The  United  States,  263. 

Buchanan,  James,  line  of  conduct, 
230. 

Cabinet,  29. 

Calhoun,  John  C.,  204,  212. 

Canada  (see  New  France). 

Carlile,    James    S.,    on    the    guarantee 

clause,  293-296. 
Charleston,  56. 

Charters,  47  n.,  139,  155  n.,  163  n. 
Chase,  Samuel,  77  n. 
Chatham,  Lord,  24,  58. 
Chisholm  v.  Georgia,  8  n.,  39  n.,  52  n., 

54  n.,  101  n.,  107  n.,  109  n.,  163  n. 
Church  and  state,  a  motive  of  revolt. 

150. 

Church  of  England,  61. 
City-State,  Aristotle's  notions  confined 

to,  32  n. 
Climate,  12. 

Clinton,  George,  77  n.,  161. 
Coercion,    Peace     Convention    against, 

229  ;  not  among  constitutional  pow- 


428 


INDEX. 


era,  229  n.  ;  Madison  on,  229  n. ; 
Black  on,  230  ;  Buchanan's  course  re 
specting,  230 ;  Lincoln  confronted 
with,  230  ;  obstacles  to,  234-236. 

Collamer,  Jacob,  261,  378. 

Colonies  and  colonists,  12,  13,  15 ; 
characteristics  of,  40-42  ;  causes  of 
segregation,  43,  44 ;  separateness  of, 
43-80  ;  made  no  effort  towards  union, 
45 ;  nothing  political  between,  45-47, 
52,  53,  55 ;  were  dominions,  47-52  ; 
autonomy  of,  47,  48  ;  political  frame 
of,  48  ;  claim  of  British  Parliament 
over,  50,  51  ;  skill  in  art  of  govern 
ing,  58,  59,  129,  132;  inefficacy  of 
colonial  system,  59,  60 ;  individuality 
of,  61,  62 ;  Bluntschli's  points  of 
colonial  similarity,  62  n.  ;  creatures 
of  growth,  63  ;  local  self-government, 
64 ;  reluctance  to  part  with  powers, 
64-66,  83,  90,  92  ;  vitality  of  the  local 
governments,  95,  96,  100  ;  colonial 
epoch,  the  generative  epoch,  128,  137; 
fondness  for  political  studies,  129; 
influence  of  Locke  and  Montesquieu, 
study  of  the  law,  130  ;  political  dis 
quisitions,  131  ;  no  general  parties, 
133  ;  an  age  of  constitutional  devel 
opment,  134. 

Committee  of  Public  Safety,  74. 

Compact,  72,  103 ;  refers  to  the  Consti 
tution,  197,  198,  204  ;  change  of  north 
ern  view  respecting,  215. 

Compromise  (see  Crittenden  ;  Missouri), 
20,  121,  122,  226,  227. 

Confederation  (see  Articles  of  Confeder 
ation  ;  New  England  Confederation), 
9,  83,  94,  95. 

Congress,  the  United  States',  9,  91,  92, 
99, 107, 139  ;  parties  define  themselves 
in,  172  ;  173  n.,  263,  264. 

Congress  of  the  Colonies,  47. 

Congresses  of  1774  and  1775, 64,  66-76, 
91,  94,  95,  103,  121. 

Connecticut,  33,  47  n. ;  retained  charter 
for  state  constitution,  48  n.,  139 ;  123, 
169  ;  resigns  claim  to  territory,  189  ; 
retains  Western  Reserve,  190  n. 

Constitution,  the  British,  23-25,  32. 

Constitution  of  the  United  States,  28 ; 
provides  for  equality  of  states,  9,  11 ; 
a  compromise,  20 ;  vital  forces  stored 
in,  34  ;  "  the  First  Constitution,"  81- 
103  ;  when  submitted  to  the  states, 
88  n.  ;  not  contemplated  in  call  for 
convention,  90,  104-124;  leading  de 
fects  of,  and  objections  to,  155  n.  ; 
construction  of,  173-175  ;  modes  of 
constitutional  redress,  199  ;  terminol 
ogy  of  ratifications  of,  207  ;  provision 
for  resumption  of  powers  in  ratifica 
tions  of,  209. 

Constitutional  Convention,  ignored  pur 
pose  for  which  it  was  called,  90  ;  com 
pleted  the  Revolution,  116,  117,  211, 
212. 

Constitutionality  of  laws,  courts  to  de 
termine,  35. 


Constitutions,  Aristotle  upon,  28-32; 
written  and  unwritten,  30 ;  contain 
form  of  governnent,  30  ;  whence  un 
written  constitutions  can  be  deduced, 
30,  31 ;  manifest  spirit  of  the  state, 
31 ;  ethical  qualities  of,  31  n.  ;  ap 
pearance  of  written  constitution  in 
Connecticut,  33,  34  ;  expressive  of  a 
people's  political  nature,  126  ;  consti 
tutional  character  best  expressed  at 
inception,  116,  117,  126,  127. 

Constitutions  of  the  several  states,  adop 
tion  of,  77  n. ;  charters  retained  for 
constitution,  48  n.,  139 ;  no  vital 
changes  resulted  from  Revolution, 
96. 

Corporation,  or  body-politic,  47,  48,  54. 

Courts,  the,  35. 

Cowan,  Edgar,  315. 

Credentials  of  colonial  delegates,  67,  72, 
106,  401-406. 

Crittenden,  John  J.,  compromise,  227  ; 
resolution,  245-253. 

Cromwell,  Oliver,  24. 

Cushing,  Justice,  109  n. 

Dane,  Nathan,  191. 

Davis,  Garrett,  371. 

Davis,  Henry  Winter,  244 ;  reports  Re 
construction  Bill,  275  ;  speech  on  the 
bill,  278-282;  manifesto,  299-305; 
307  ;  his  last  address,  309-314  ;  death 
of,  315;  political  character  of,  315; 
364,  365,  379,  381,  412-425. 

Davis,  Jefferson,  takes  leave  of  the 
Senate,  2-4  ;  criticises  President  Lin 
coln,  223  n.,  242;  keeps  within  his 
constitution,  240. 

Dawes,  Henry  L.,  308,  311,  312,  315. 

Declaration  of  colonial  rights,  68. 

Declaration  of  Independence,  74,  76- 
79. 

Declaration  of  Rights,  39  n.  ;  (Virginia) 

Delaware,  77  n.,  190;  ratification  of 
Constitution,  207  ;  281. 

Democracy  (see  Representative  Demo 
cracy),  37,  113,  150. 

Democratic-Republican  Party,  145-170 ; 
constituents  of,  146-149;  two  funda 
mental  principles,  149  ;  dread  of  stand 
ing  army,  "  artificial  classes,"  church 
and  state,  150  ;  Madison  becomes  con 
gressional  leader,  151  ;  faith  in  the 
Constitution,  154 ;  founded  prior  to 
return  home  of  Jefferson,  160,  161  n. 

Democratic  Party,  adopted  Virginia 
Resolutions  as  creed,  205  ;  215. 

Dickinson,  John,  69  n. 

Dixon,  James,  256. 

Dominion,  47,  48,  51-53. 

Doolittle,  James  R.,  249,  253,  371,  376- 
378,  381,  383-387,  393. 

Durant,  Thomas  J.,  331. 

Education,  15,  16. 

Eliot,  Thomas  D.,  307,  308,  311,  312, 
315. 


INDEX. 


429 


Emancipation,  39,  266,  267  ;  Proclama 
tion,  267,  268  ;  Louisiana,  339. 

Equality  of  representation,  19. 

Equality  of  statehood,  8,  19-21.  70, 
72. 

Exclusiveriess,  colonial,  53-61,  97. 

Federalist,  The,  41  n. 

Federalist  Party,  constituents  of,  140- 

144  ;  how  they  came  into  power,  151  ; 

mistakes  of,   152-155;  doctrines    of, 

175-179. 
Federal  Union,  The   (see  Union,    The 

Federal). 
Federation  and  Federalism,  8,   9,   3G, 

117;  196. 

Fessenden,  W.  P.,  250,  261. 
Florida,  1,  5,  220. 
Fowler,  32  n. 
Franklin,  Benjamin,  45  n.,  57  n.,  60  n., 

77  n. 

Free  Inquiry,  33,  34,  38. 
Fugitive  Slave  clause  in  Ordinance  of 

1787,  191. 

Glenelg,  Lord,  51  n. 

George  II.,  63. 

Georgia,  4  (see  Chisholm  v.\  77  n.,  190  ; 
ratification  of  Constitution,  207. 

Government,  28-30,  34,  35,  87-95  ;  a  rep 
resentative  Democracy,  128. 

Governor,  the,  28,  38,  47,  48. 

Grant,  Ulysses  S.,  General,  order  re 
specting  Tennessee  courts,  317. 

Grants  from  the  crown,  52. 

Grenville,  George,  98. 

Gulf  of  Mexico,  40. 

Habeas  Corpus  Act,  24. 

Hahn,  Michael,  337-339,  380. 

Hale,  John  P.,  251,  259-262  ;   315,  342. 

Hamilton,  Alexander,  74  n.,  77  n.,  100, 
101,  111  n.  ;  his  supporters,  140-144; 
his  constructive  measures,  152,  153 ; 
distrust  of  the  people,  153, 184  ;  Secre 
tary  of  the  Treasury,  157  ;  writes  much 
of  the  Federalist,  and  advocates  adop 
tion  of  the  Constitution,  161,  162; 
notions  of  government,  163,  165; 
views  of  the  Constitution,  171,  172  ;  his 
financial  measures,  172, 173  ;  his  strong 
personality,  180 ;  how  Jeffersonians 
viewed  his  financial  policy,  181-183 ; 
Hamiltonian  policy,  184-188;  effects 
of  his  financial  policy,  210. 

Harris,  Isham  G.,  318. 

Harrison,  Benjamin,  77  n. 

Hellenic  notion  of  a  state,  31  n.,  32  n. 

Henderson,  John  B.,  354-359,  364,  366, 
369,  371. 

Hendricks,  Thomas  A.,  371,  372. 

Hickman,  John,  268. 

Holman,  W.  S.,  253. 

Homogeneity,  40-43. 

Hooper,  William,  77  n. 

Hopkiuson,  Francis,  77  n. 

House  of  Representatives,  permanent 
committees,  180  n. 


Howard,  Jacob  M.,  264,  365,  366. 
Humphries,  Daniel,  101  n. 
Hunter,  General,  266. 
Hurlbut,  General,  339,  340. 
Hutchinson,  Thomas,  59  n. 

Illinois,  7. 

Indiana,  7. 

Invention,  16. 

Iredell,  Justice,  8  n.,  109  n.,  163  n. 

Jackson,  Andrew,  221. 

Jay,  John,  39  n.,  41  n.,  69  n.,  107  n. 

Jefferson,  Thomas,  16,  77  n.,  105, 106  n. ; 
becomes  Secretary  of  State,  157  ;  sym 
pathy  with  French  revolution,  159 ; 
favorable  disposition  towards  the  Con. 
stitution,  160 ;  notions  of  government, 
163-165 ;  reported  plan  for  govern 
ment  of  western  territory,  190  ;  au 
thor  of  Kentucky  resolutions,  1798, 
193,  196,  198  ;  letter  to  Madison,  203  ; 
221. 

Johnson,  Andrew,  offers  Crittenden 
resolution  in  the  Senate,  246,  249  ;  ap 
pointed  military  governor  of  Tennes 
see,  318 ;  purposes  of  his  appoint 
ment,  319 ;  views  of  relations  of  citi 
zens  to  federal  government,  320  11.  ; 
regarded  southern  states  to  be  in  the 
Union,  321 ;  382,  387  ;  Sumner's  opin 
ion  of,  387. 

Johnson,  Reverdy,  366-371,  378. 

Jowett,  32. 

Kelley,  William  D.,  308. 

Kentucky,  248,  281. 

Kentucky    arid    Virginia    Resolutions, 

192-205  ;    interposition  a  duty,  214 ; 

229,  406-411. 
King,    Rufus,    presents    prohibition   of 

slavery  in  Northwest  Territory,  191  ; 

his  statement  regarding  admission  of 

Missouri,  216,  218,  222. 

Labor,  16,  17. 

Laissez-faire,  58,  63. 

League    of  friendship,   83,  84,   86,   90, 

Le  Blond,  Frank  C.,  309. 

Lee,  Richard  Henry,  111  n. 

Legislation,  29,  31. 

Legislatures,  colonial  and  state,  35,  37, 
64-66,  72,  94,  128,  131,  139,  157. 

Letcher,  John,  237. 

Lexington,  affair  of,  73. 

Lincoln,  Abraham,  228  ;  political  ante 
cedents  and  speeches,  232,  233;  his 
Inaugural  Address,  236,  243,  265,  397  ; 
answer  to  Virginia  Commissioners, 
236,  237;  position  same  as  Buchan 
an's,  236  n.  ;  takes  measures  for  coer 
cion,  237-239  ;  unconstitutionally  of 
his  acts,  239,  240;  the  condonation 
acts,  240,  346;  Message,  July,  1861, 
240,  241,  243 ;  exculpation  of  uncon 
stitutional  proceedings  on  ground  of 
necessity  and  popular  demand,  242  ; 


430 


INDEX. 


foreshadows  reconstruction,  242,  243  ; 
status  of  a  seceded  state,  243  ;  recom 
mends  compensated  emancipation, 
Hunter's  order,  appeal  to  Border 
States,  266  ;  Emancipation  Proclama 
tion,  267  ;  Message,  December,  1863, 
272  ;  Amnesty  Proclamation,  272, 273, 
281  ;  contest  with  Congress,  274  ;  dis 
trusted  by  Congress,  283,  284  ;  pock 
ets  the  Reconstruction  Bill,  296,  297  ; 
his  proclamation,  298,  299  ;  301,  302  ; 
304,  411,  412 ;  reelection,  306  ;  309- 
311  ;  early  views  of  reconstruction, 
320,  325 ;  dealings  with  Arkansas, 
takes  reconstruction  of  Louisiana  into 
his  own  hands,  333 ;  confers  military 
powers  on  Hahn,  338 ;  message  on 
joint  Resolution,  February  4,  1865, 
387-389. 

Local  self-government,  80,  82,  95 ;  Jef 
ferson,  exponent  of,  165. 

Localism,  36,  80,  94,  95,  112. 

London,  55,  56. 

Long  Parliament,  24,  91. 

Louis,  The  United  States  v.,  328-330. 

Louisiana,  217  n.  ;  302,  303,  306,  307, 
309,  313,  316  ;  movements  towards  re 
organization,  326,  327,  330,  331  ;  free 
state  men  or  radicals,  331-333  ;  335- 
339;  Banks'  reconstruction,  334-340; 
members  of  Congress,  340,  343 ;  con 
gressional  report,  340,  342;  Wells' 
proclamation,  342  ;  character  of  the 
loyal  people,  342-344  ;  Senate  debate 
on  recognition,  349-373;  Senate  de 
bate  on  electoral  vote,  374-387. 

Louisiana  Purchase,  216  n.,  217  u.  ;  re 
pugnance  to,  219  ;  220. 

Love  joy,  Owen,  257. 

Madison,  James,  95  n.,  103 n.,  105, 106  n., 
llln.,116n.;  leader  of  new  party,  149, 
151, 176  ;  influence  over  Jeff erson,  160  ; 
author  of  Virginia  Resolutions,  193; 
comments  on  Jefferson,  202,  203  ;  on 
the  word  "  states,"  206 ;  on  the  guar 
antee  clause,  293,  355. 

Maine,  admission  of,  222-224. 

Maine,  Sir  Henry  S.,  58  n. 

Manifesto,  the  Wade -Davis,  299-305; 
412-425. 

Marshall,  John,  75  n.,  98  n. 

Mary,  William  and,  25. 

Maryland,  48  n.,  77  n.,  140,  169 ;  rea 
sons  for  ratifying  Confederation,  189  ; 
voted  against  prohibition  of  slavery, 
190  ;  229,  248,  281. 

Mason.  George,  121. 

Massachusetts,  33,  44,  46  n.,  47  n.,  50, 
77  n.,  140 ;  ceded  territory,  190  n.  ; 
styles  the  Constitution  a  compact,  197, 
223. 

May,  51  n. 

Middleton,  Arthur,  77  n. 

Migration,  13,  33. 

Mississippi,  2,  40. 

Missouri,  6;  applies  for  state  govern 
ment.  216  ;  had  been  slave  territory, 


217,  219,  220  ;  the  Missouri  Compro 
mise,  223-226  ;  229,  248. 

Monroe,  James,  concerning  declination 
of  Spain's  offer,  221,  225. 

Montesquieu,  58  n. 

Montfort,  Simon  de,  25. 

Morrill,  Lot  M.,  263,  264. 

Nationalism,  36,  105,  118,  138 ;  federal 
ism  shares  with,  172;  196;  becomes 
aggressive,  205. 

New  England,  7,  15,  16,  34,  38,  41,  43, 
45,  140,  214. 

New  England  Confederation,  36,  45  n., 
77  n.,  91. 

New  France,  37,  38,  40,  41. 

New  Hampshire,  77  u.,  styles  the  Con 
stitution  a  compact,  197. 

New  Jersey,  34,  41,  77,  140,  169,  190, 
281. 

Newman,  31  n.,  33  n. 

New  Orleans  (see  Louisiana). 

New  York,  7,  38  n.,  42, 45,  73,  77  n.,  140, 
189,  209. 

North,  Lord,  98. 

North  Carolina,  17,  44,  77  n.,  123 ;  vote 
on  prohibition  of  slavery,  190 ;  228 ; 
attempted  reconstruction  of,  323, 
324. 

Nullification,  3,  201,  202. 

Ohio,  6,  7,  192. 

Ordinance  of  1787,  189-192,  220,  224. 

Otis,  James,  64. 

Paine,  Robert  Treat,  77  n. 

Parish,  The,  37. 

Parkman,  Francis,  60  n. 
;  Parliament,   British,  fixedly  organized, 
24 ;  assertion  of  authority  over  colo 
nies,  50,  51  u. ,  64,  65,  68. 

Parliaments  (see  Legislatures),  66. 

Parties,  87;  formation  of,  125-128 ;  source 
of,  125  ;  history  of,  127  ;  agents  of  op 
posing  ideas,  128 ;  no  general  parties 
during  colonial  period,  133, 134 ;  Whjgs 
and  Tories,  133  ;  generated  during  rev 
olutionary  period,  134;  two  schools, 
137, 138, 149, 167-170  ;  formed  in  state 
legislatures,  139-157  ;  became  general 
under  federal  government,  157,  158  ; 
lines  defined  in  Congress,  172 ;  Ham- 
iltonians  and  Jeffersonians,  175  ;  doc 
trines  of,  175-179 ;  strict-construction- 
ists,  179 ;  affected  by  character  of 
leaders,  181 ;  state-rights,  antitype  of 
nationalism,  205. 

Peabody,  Charles  A.,  325,  326,  328-331, 
376. 

Peace  Convention,  resolved  against  co 
ercion,  229. 

Pendleton,  Edmund,  on  compact,  198. 

Pendleton,  George  H.,  on  Reconstruc 
tion  Bill,  284-288. 

Penhallow's  Case,  365  n. 

Pennsylvania,  41,  75  n.,  76,  77  n.,  122  n., 
140, 169. 

People,  constitutional  character,  30,  31 ; 


INDEX. 


431 


thirteen  distinct  peoples,  53,  55,  78,  79, 

133,  207;   character  relates  to  latest 

revolution,  127  ;  source  of  power,  127  ; 

the  word  "  peoples,"  206,  207. 
Petition  to  the  king,  69. 
Phelps,  John   S.,  military  governor  of 

Arkansas,  324. 
Philadelphia,  13,  42,  55,  56. 
Phillips,   Wendell,  welcomes  disunion, 

231 ;  304. 
Plato,  31  n. 
n-oAtreta,  28,  32. 
Pomeroy,  Samuel  C.,  371. 
Poor  whites,  the,  17,  18. 
Powell,  Lazarus  W.,  350-354,  360,  368, 

369,  378,  381,  383-385,  386  n. 
Power,  balance  of,  8,  19,  20  ;  descent 

of,  from  the  throne  to  the  commons, 

24-26;  gravitation  of  northward,  18- 

20. 
Powers,  implied  or  latent,  84,  172-175, 

177. 

President,  The,  10,  11,  28,  29. 
Pride's  Purge,  25. 
Privy  Council,  97. 
Products,  12. 

Protest,  Wade-Davis  (see  Manifesto). 
Providence,  42  n. 

Randolph,  Edmund,  101  n.,  103  n.,  121. 

Reconstruction,  Plans  of,  the  Presiden 
tial,  272,  273,  281  ;  the  congressional, 
277,  278,  290. 

Reiter,  The  United  States  v.,  328-330. 

Religion,  15. 

Representation,  9,  10,  37,  118-121. 

Representative  Democracy,  26,  33-36, 
112-114,  118, 128. 

Representatives,  House  of,  4,  9-11,  118. 

Republican  form  of  government,  guar 
antee  of,  113,  122-124 ;  bill  to  guaran 
tee  (the  Reconstruction  Bill),  275-279  ; 
Madison  upon,  293  ;  Carlile  upon,  293- 
296. 

Republican  Party,  certain  elements  of, 
231. 

Revolution  in  America,  26,  27,  37-39; 
period  of,  64  ;  95,  96  n.,  117  ;  genera 
tion  of  parties  in,  134,  135. 

Revolution  in  Great  Britain,  24-26,  38, 
39,  89,  110,  149. 

Rhode  Island,  33,  34,  47  n.  ;  retained 
charter  as  state  constitution,  48  n., 
139 ;  123,  169. 

Rodney,  Csesar,  77  n. 

Ruler,  the,  elimination  of,  89,  90,  168. 

Rush,  Benjamin,  77  n. 

Rutledge,  Edward,  77  n. 

Saulsbury,  Willard.  261,  371. 
Schools,  Old  and  New,  85-89,  167-190. 
Secession,   3,   8 ;    a    constant    menace, 

213 ;  regarded  as  a  natural  remedy, 

214. 

Sectionalism,  12-21 ;  208-214,  231,  232. 
Segregation  of  colonies,  43,  44. 
Senate,  The  United  States',  1,  7-12,  118; 

permanent  committees,  180  n. 


|  Seward,  William  Henry,  259. 
i  Shepley,   George  F.,  military  governor 
of  Louisiana,  325,  332,  333. 

Sherman,  John,  251,  373. 

Slavery  and  slave-power,  15,  18-20,  37  ; 
abolished  in  District  of  Columbia, 
26G  n.  ;  Emancipation  Proclamation, 
267,  268. 

Slaves,  representation  of,  119-221. 

Smith,  Melaucthon,  161. 

Social  forms,  12  et  seq. 

South  Carolina,  1,  7,  44,  77  n.,  120; 
cedes  territory,  190  n.  ;  voted  against 
prohibition  of  slavery,  190,  228. 

Sovereignty,  27,  35,  39  n.,  67,  70-72,  75- 
79,  82. 

Sovereignty,  state,  3,  27,  39  n.,  79  ;  "  re 
siduary  sovereignty,"  155. 

Sovereignty  of  the  United  States,  8, 
39  n.,  82,  105,  108,  109  n. 

St.  Lawrence,  the  river,  40. 

Stamp  Act,  45  n.,  46,  52,  57,  64. 

Stanley,  Edward,  323. 

State  and  church,  34,  150. 

State,  the,  3,  27. 

States,  the,  3,  5,  6,  8,  9,  19,  27,  35,  76, 
82-84,  98,  112,  113  n.  ;  application  of 
the  term,  205,  206  ;  in  reference  to 
"  peoples,"  206,  207  ;  effect  of  seces 
sion  upon  status,  254,  256,  258,  285- 
288,  290,  291 ;  what  is  a  state  ?  365, 
374-387. 

Statutes  (see  Legislation). 

Stevens,  Thaddeus,  ignores  the  Consti 
tution,  254,  256,  263,  265,  270;  on 
status  of  seceded  states,  258 ;  assails 
the  President,  268,  269,  274  ;  the  rad 
ical  ultimatum,  271;  his  vaunt,  258, 
272,  276  ;  275  ;  view  of  representation 
requisite  for  an  amendment,  280,  281 ; 
alliance  with  conservatives,  314,  315  ; 
votes  to  table  Reconstruction  Bill, 
314  n.  ;  330,  343,  368  n.,  386,  397. 

Story,  Justice,  48  n.,  116  n. 

Sturgess  v.  Crowninshield,  75  n. 

Suffrage,  ratio  of,  119-121. 

Sumner,  Charles,  254,  265,  349,  350, 
355,  356,  361,  363,  364,  366,  369-373, 
387. 

Tallmadge  Amendment,  216,  222. 

Ten  Eyck,  John,  374-387. 

Tennessee,  44,  228 ;   reconstruction  of, 

317-323  ;  convention  and  elections  of 

1865,  Brownlow  elected  governor,  323  ; 

ratified  thirteenth  amendment,  323. 
Texas,  221. 
Topography,  12. 
Townshend,  Charles,  98. 
Township,  The,  37. 
Treaties,  France,  79 ;  Great  Britain,  79  ; 

Netherlands,  79 ;  Spain,  218,  219,  225 ; 

Sweden,  79 ;  (general)  107. 
Trumbull,  Lyman,  250,   252,   253,  259, 

315,  349,  350,  371,  374,  375,  378. 

Union,  21,  35,  45-47,  65,  66,  70,  71,  82- 
84,  118,  158. 


432 


INDEX. 


Union,  The  Federal,  1-3,  6-8,  20,  21,  27, 
35,  3(5,  82,  97,  114,  115,  118,  123, 
227 

United  States,  The,  1,  4,  8,  82 ;  govern 
ment  of,  representative-democratic, 
128  ;  need  of  central  power,  138. 

Usurper,  Powell's  definition  of,  385. 

Virginia,  16  n.,  17,  38,  39  n.,  77  n.,  140, 
offer  to  cede  Northwest  Territory, 
189;  Congress  accepted  cession,  190 
n.  ;  voted  against  prohibition  of  slav 
ery,  190  ;  provision  for  resumption  of 
powers,  209,  228. 

Wade,  Benjamin  P.,  244,  290-292,  299, 

371,  379-383,  412-425. 
Wadsworth,  William  H.,  271,  272. 


Washington,  city  of,  7. 

Washington,   George,   101   n.,  115    n.  • 

first  cabinet  of,  157. 
Webster,  Daniel,  5, 196,  198,  204. 
Wells,  Governor,  342. 
Western  Virginia,  248,  268,  269. 
Whigs,  the,  85,  215. 
White  and  black  races,  incompatibility 

of,  19. 
Willey,  Waitman  T.,  expresses  fears  of 

the  Border  States,  249. 
William  and  Mary,  25. 
Wilson,  Henry,  247  n.,  256,  261,  276  n. 
Wilson,  James,  122. 
Wood,  Fernando,  308. 
Wythe,  George,  77  n. 

Yulee,  Senator,  2. 


IOAN  DEPT. 


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